20041104Qwest Response to Petition for Reconsideration.pdf

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WILLIAM J. BATT, ISB No. 2938
JOHN R. HAMMOND, JR., ISB No. 5470
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 MA TTER 0 THE JOINT
APPLICATION OF QWEST CORPORATION IPUC DOCKET NO. QWE- T -03- 7
AND W VESENT LLC FOR APPROVAL OF IPUC DOCKET NO. QWE- T -03-AN AMENDMENT TO AN EXISTINGINTERCONNECTION AGREEMENT
PURSUANT TO 47 U.C. ~ 252(e). QWEST CORPORATION'
----------------------------------------------------------- RESPONSE AND CR OSS- PE TIT I ON
APPLICATION OF JOESPH B. MCNEAL TO P AGEDA T A AND W A VESENT'
DBA P AGED A T A FOR APPROVAL OF THE PETITION FOR RECONSIDERATION
AGING CONNECTION AGREEMENT FOR
THE STATE OF IDAHO PURSUANT TO 47
C. ~ 252(i).
On October 28, 2004, PageData and Wavesent, LLC (hereinafter the "Pagers ) filed a
joint Petition to Reconsider the Idaho Public Commission s Final Order No. 29604 that
dismissed their Revised Applications (hereinafter "Applications ) for approval of alleged
amendments to their interconnection agreements with Qwest Corporation (hereinafter "Qwest"
QWEST CORPORATION'S RESPONSE AND CROSS-PETITION TO PAGEDATA AND WA VESENT'
PETITION FOR RECONSIDERATION, P. 1
ORIGINAL
Order No. 29064 dismissed the Applications without prejudice and referred them to the Federal
Communications Commission (hereinafter "FCC") for resolution.
Recently the parties received correspondence from the FCC's Enforcement Bureau that
declined to consider the issues raised by the Pagers ' Applications , a copy of which is attached
hereto as Exhibit 1. On the basis of the Enforcement Bureau s Letter, the Pagers now ask the
Commission to reconsider its dismissal of the Applications.
Pursuant to Idaho Code ~ 61-626 and Commission Rule of Procedure 331.05 Qwest
responds to Pagers' Petition for Reconsideration and requests that it be denied.IDAP A
31.01.01.331.05. In the alternative, should the Commission determine that it erred by referring
this matter to the FCC Qwest by Cross Petition requests that the Commission dismiss the
Pagers' Applications on other grounds. Idaho Code ~ 62-626 & IDAP A 31.01.01.331.02.
BACKGROUND
Revised Applications for Amendments to Interconnection Agreements
On August 11 , 2004, the Pagers filed their Applications for Approval of Amendments to
their respective paging interconnection agreements with Qwest. The underlying agreements
were approved by the Commission in Order No. 29198 issued February 25 , 2003 , and were
amended in July of 2003 when the Commission issued Order No. 29293. The amendment added
of Single Point of Presence ("SPOP") language.
The Pagers' Applications requested that the Commission approve an "amendment" to
each of their interconnection agreements. The Pagers alleged the amendment was in the form of
an email from Robert McKenna of Qwest dated June 4, 2003. The Pagers alleged in the
Applications that the email/amendment was reached through voluntary negotiations that settled
two informal complaints the Pagers had filed with the FCC. The Pagers further contended that
this email provided forward-looking terms and clarified and amended section 2.4 of the parties
interconnection agreements. Applications at 1. The Pagers alleged that because the amendments
were "reached through voluntary negotiations" and were in the public interest they could be
approved without a hearing. Id. at 2-
1 See IPUC Order No. 29604 at p. 4.
QWEST CORPORATION'S RESPONSE AND CROSS-PETITION TO PAGEDATA AND WAVESENT'
PETITION FOR RECONSIDERATION, P. 2
Qwest's Motion to Dismiss
On September 28, 2004 Qwest filed its Objection and Motion to Dismiss the Pagers
Applications. Qwest stated that it did not join the Pagers' Applications , nor had it been invited
by the Pagers to do so. Accordingly, the Pagers' Applications were contrary to the standard
industry practice for submission of an amendment to an interconnection agreement to a state
commission. Qwest argued that the Pagers' claim that the interconnection agreements had been
amended by Mr. McKenna s email was wrong, and that the email sent by Mr. McKenna had not
been intended as an amendment of the parties' interconnection agreements. Contrary to the
assertion of the Pagers, it was clear that from a review of Mr. McKenna s e-mail that he was
neither negotiating nor offering amendments to the adopted interconnection agreements. Qwest
Motion at p. 3.
Qwest also stated in its Motion that it was never informed that the Pagers considered this
email to be a contractual amendment until they unilaterally filed their Applications. In sum
Qwest argued that the parties have not voluntarily agreed to any amendments that are claimed by
the Pagers. Qwest also argued that because there is no agreement between the parties to amend
their interconnection agreements, the Commission should dismiss the Applications and refer the
Pagers to the dispute resolution provisions contained in the interconnection agreements.
Commission Order No. 29604
In regard to the Pagers' contention that Mr. McKenna s email was voluntarily
negotiated amendment to the parties' interconnection agreements , the Commission stated:
It is not clear to us and the AQPlications do not articulate which portion(i) of the
email contain the amending language. In addition. it is unclear about which
Section 2.4 the proposed amendment pertains to - the Arch Agreement or the
2003 Amendment. Both the Arch Agreement and the Amendment contain a
Section 2.4. . . .Given the disagreement between the parties, the lack of specificity
to the proposed amendment and the fact that the proposed amendment arises in
the context of an FCC informal proceeding, we believe the better course of action
is to refer this matter to the FCC.
Order No. 29604 at p. 3-4. Thus, the Commission referred the Pagers' Applications to the FCC
for resolution and granted Qwest's Motion to Dismiss without prejudice. Id.
QWEST CORPORATION'S RESPONSE AND CROSS-PETITION TO PAGEDATA AND WA VESENT'
PETITION FOR RECONSIDERATION, P. 3
FCC Enforcement Bureau Letter
On October 25, 2004, Anthony J. DeLaurentis of the FCC's Enforcement Bureau wrote
correspondence to Joseph McNeal, owner of the Pagers, responding to his request for guidance
regarding the IPUC's Order No. 29604. In his letter Mr. DeLaurentis states:
(c Jonsistent with our practice in handling informal disputes, Commission staff
facilitated discussions between you and Qwest in 2003 regarding an apparent
dispute involving Qwest's alleged refusal to allow your company to opt into
existing interconnection agreements. I understand that that dispute was resolved
and your company ultimately opted into various interconnection agreements with
Qwest. Subsequently. in response to an awarent attempt by your company to
take service under one or more of these interconnection agreements. Qwest sent
the June 4. 2003 email attached to you October 22od letter. Commission Staff
received the email but did not take any position with respect to Qwest's email and
did not adopt or endorse this email as a formal or informal resolution of the~ute you were awarently having with Qwest concerning ordering service. a
dispute which differs from the opt-in dispute you initially asked Commission staff
to mediate.
Letter of Anthony J. DeLaurentis at 2 (emphasis added). Mr. DeLaurentis further stated the
Enforcement Bureau was not asked to and did not make any determination as to whether the
email was a valid ~ 252 amendment and concluded it would not be appropriate for the
Commission staff to make that determination given that the Act gives state commissions the
exclusive right to make such determinations in the first instance. Id. at 2.
II.
PETITIONS FOR RECONSIDERATION
In general, the grounds that the Pagers advance in support of their Petition for
Reconsideration fail to demonstrate that the Commission Final Order No. 29604 is
unreasonable, unlawful, erroneous or not in conformity with the law. Furthermore, the Pagers
fail to provide the nature and quantity of evidence or argument that they would offer if
reconsideration were granted. Idaho Code ~ 61-626. Specifically, the Pagers have failed to
demonstrate through their Petition for Reconsideration that the email they received from Mr.
McKenna constituted an amendment to the parties ' interconnection.
Standard for Reconsideration
Reconsideration provides an opportunity for an aggrieved person to bring to the
Commission s attention any issue previously determined and provides the Commission with an
opportunity to rectify any mistake or omission. Idaho Code ~ 61-626; Washington Water Power
QWEST CORPORATION'S RESPONSE AND CROSS-PETITION TO P AGEDA T A AND W A VESENT' S
PETITION FOR RECONSIDERATION, P. 4
v. Kootenai Environmental Alliance 99 Idaho 875 , 591 P.2d 122 (1979). In those instances
where an aggrieved person asks the Commission to reconsider its decision based upon the
record, it may simply do so. The Commission s Procedural Rule 331.01 requires that petitions
for reconsideration must include "a statement of the nature and quantity of evidence or argument
that the petitioner will offer if reconsideration is granted.IDAP A 31.01.01.331.01.
Commission Rule 331.03 provides that petitions for reconsideration must state whether the
petitioner requests reconsideration by evidentiary hearing, written briefs, comments, or
interrogatories. IDAP A 31.01.01.331.03. The Pagers stated in their Petition that no hearing is
needed to resolve this matter. Qwest agrees that no hearing is needed, and that as argued in
detail below in both its response and Cross Petition, the Company believes that based on the
record in this matter the Commission should dismiss the Pagers' Petition for Reconsideration.
The Pagers ' Petition
The Pagers' Petition for Reconsideration requests that the Commission grant
reconsideration by rescinding, modifying or changing the order granting Qwest's Motion
to Dismiss. In addition, the Pagers request that the Commission approve their
Applications for approval of an amendment to their interconnection agreements based on
the email they received from Mr. McKenna of Qwest. The Pagers offer several grounds
for reconsideration. However none of the Pagers' arguments warrant granting their
Petition for Reconsideration and Applications.
Qwest Response and Argument
The Commission did not assign any burdens.
In Order No. 29604 the Commission did not specifically state that the Pagers had
the burden to prove that the email constituted a voluntarily negotiated amendment. As
such, the Pagers ' argument that the Commission wrongly assigned the burden to them is
moot. However, it should be noted that the Commission found that it was not clear from
the Pagers' Applications "which portion( s) of the email contain the amending language
or "which ~ 2.4 the proposed amendment pertains to(.J" Combine this with the
Commission s recognition that Qwest disputed Mr. McKenna s email constituted an
amendment and it seems clear that the Commission was not convinced by the Pagers
representations that the email constituted a valid amendment. Qwest believes these
Commission findings are consistent with state case law that would require the Pagers to
QWEST CORPORATION'S RESPONSE AND CROSS-PETITION TO P AGEDA T A AND W A VESENT'
PETITION FOR RECONSIDERATION, P. 5
demonstrate that the email constituted a voluntarily negotiated amendment.See
Intermountain Forest Management, Inc. v. Louisiana Pac. Corp.136 Idaho 233 , 237, 31
P.3d 921 , 925 (2001); Inland v. Comstock 779 P .2d 15 , 17, 116 Idaho 701 , 703 (1989);
Haener v. Ada County Highway District 108 Idaho 170 , 173 , 697 P.2d 1184, 1187
(1985).2. The Commission did not err by referring the Pagers' Applications to
the FCC for resolution and granting Qwest's Motion to Dismiss.
In Order No. 29604 the Commission found that the alleged email amendment arose in the
context of and FCC informal proceeding. Order No. 29604 at 4. The Pagers advocated that this
was the case in their Revised Applications and their Petition for Reconsideration.Rev.
Applications at 1; Petition for Recon. at p.1. The Commission also found that it was unclear
which portiones) of the email contain the amending language(,J" for the existing interconnection
agreements. Order No. 29604 at p. 3. Further, the Commission stated that it was unclear which
Section 2.4 the proposed amendment pertains to - the Arch Agreement or the 2003 Amendment.
Id. at 4. For these reasons and because the Idaho Commission was not a party to the informal
proceeding before the FCC, it referred the Pagers' Applications to that agency finding it had
primary jurisdiction.
Because of the Pagers' representations that there was an informal dispute before the FCC
regarding the alleged email amendment, the Commission did not abuse its discretion in referring
the matter to that forum or by granting Qwest's Motion to Dismiss on such basis. Even if the
Commission finds it did error by referring this matter to the FCC and grants reconsideration, this
error is "harmless" as the Commission could have and still can dismiss the Pagers' Applications
on other grounds. These grounds and arguments supporting them are discussed below in
Qwest's Cross Petition.
The Commission did not fail to enforce its Final Order N 0.29154.
In Final Order No. 29154 (Case No. QWE-02-17) the Commission recognized that the
FCC found that agreements that created ongoing obligations regarding, resale, number
portability, dialing parity, access to rights-of-way, reciprocal compensation, interconnection
2 The Idaho Supreme Court has stated that if an error did not affect a party s substantial rights or the error did not
affect the result of the trial, the error is harmless and not grounds for reversal. Martin v. Hackworth 127 Idaho 68
, 896 P.2d 976, 978 (1995).
QWEST CORPORATION'S RESPONSE AND CROSS-PETITION TO PAGEDATA AND WA VESENT'
PETITION FOR RECONSIDERATION, P. 6
unbundled network elements or collocation were interconnection agreements under the Act.
Order No. 29154 at p. 7 citing Qwest Petition for Declaratory Ruling, 17 FCC 19337, 19340-
(F.C. 2002). The Commission further noted that the FCC had also found that dispute
resolution and escalation provisions relating to obligations set forth in ~ ~ 251 (b) and (c) were
appropriately deemed interconnection agreements. Id at p. 19341. Based on these authorities
the Commission ordered Qwest to continue to review any and all unfiled contractual agreements
it had entered to determine whether they should be filed with the Commission as interconnection
agreements under the Act. Id. at p. 8. The Commission did not error by not directing Qwest to
file the email Mr. McKenna sent to the Pagers as an amendment for the simple reason that it was
unclear to the Commission from the Pagers' unilateral Application what part of the email
amended the interconnection agreements. Finding no clear amendment, it cannot be said that the
Commission violated any requirement of Order No. 29154.
III.
CROSS PETITION FOR RECONSIDERATION
Idaho Code ~ 61-626(1) and Commission Procedural Rule 331 allow a party to cross-
petition for reconsideration in response to any issues raised in a petition for
reconsideration within seven days: Section 61-626(1) provides:
Cross-petitions for reconsideration may be granted if any petition for
reconsideration to which they respond is granted on the issues to which the cross-
petition is directed, but cross-petitions for reconsideration will be denied when the
petitions for reconsideration to which they are directed are denied.
Because a cross-petition for reconsideration will be granted only as to those issues that respond
to an issue initially raised in a petition for reconsideration, the scope of as cross-petition for
reconsideration is limited to those issues raised in a petition for reconsideration. Eagle Water
Company, Inc. v. Idaho Public Utilities Commission 130 Idaho 314, 940 P .2d 1133 (1997).
If the Commission finds that it erred by granting Qwest's Motion to Dismiss on the
grounds that it referred this matter to the FCC, Qwest asserts there are at least two grounds upon
which the Commission may still grant its Motion to Dismiss. First, the Pagers failed to carry
their burden to demonstrate that the McKenna email constituted a voluntarily negotiated
amendment. Second, through the underlying interconnection agreements, the parties agreed to
QWEST CORPORATION'S RESPONSE AND CROSS-PETITION TO PAGEDATA AND WA VESENT'
PETITION FOR RECONSIDERATION, P. 7
settle all disputes regarding the operation of their agreements through the dispute resolution
procedures contained in Section 13.14.
As stated previously, the formation of a contract in Idaho requires that the parties
have a common and distinct understanding. Intermountain Forest Management, Inc.
Louisiana Pac. Corp.136 Idaho 233, 237 31 P.3d 921 925 (2001). The party alleging
that a contract has been formed has the burden to prove that the parties mutually assented
to an agreement. Inland v. Comstock 779 P.2d 15, 17, 116 Idaho 701 703 (1989);
Haener v. Ada County Highway District 108 Idaho 170, 173, 697 P .2d 1184, 1187
(1985).
Regarding amendments to the parties' interconnection agreements , Section 13.
of the agreements require that the parties must mutually agree in writing to amend their
interconnection agreements. The Pagers have failed to demonstrate that Qwest agreed to
any amendment of the relevant agreements. Additionally, the Pagers have failed to
identify with specificity how the email they received from Mr. McKenna amends their
agreements. As such, the Pagers clearly have failed to carry their burden to demonstrate
that a voluntarily negotiated amendment to their interconnection agreements with Qwest
was formed by the email they received from Mr. McKenna. Thus, the Pagers
Applications should be dismissed on Qwest's Cross Petition.
Additionally, this matter should be dismissed because the Pagers' Applications at most
demonstrate a dispute regarding the operation of the interconnection agreements between
themselves and Qwest. Indeed Qwest asserts that Mr. McKenna s email was only sent in order
to explain how portions of the agreements operated. As such they are bound by Section 13.14 of
the parties ' agreements to resolve such disputes. Accordingly, the Commission should also grant
Qwest's Motion to Dismiss based on this basis.
CONCLUSION
Based on the foregoing, Qwest respectfully requests that the Commission deny the
Pagers ' Petition for Reconsideration. In the alternative , should the Commission feel that it must
grant reconsideration, Qwest asserts that it may still dismiss this matter based on the grounds
alleged in the Company s Cross Petition.
QWEST CORPORATION'S RESPONSE AND CROSS-PETITION TO P AGEDA T A AND W A VESENT' S
PETITION FOR RECONSIDERATION, P. 8
DATED this 3rd day of November, 2004.
Respectfully Submitted
Adam Sherr
Qwest Communications, Inc.
1600 7th Avenue - Room 3206
Seattle, W A 98191
and
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Wi lam J. Batt/J R. Hammond, Jr.
att & Fisher, LLP
U S Bank Plaza, 5th Floor
101 South Capital Blvd.
Boise, Idaho 83702
[phone]
QWEST CORPORATION'S RESPONSE AND CROSS-PETITION TO PAGEDATA AND WAVESENT'
PETITION FOR RECONSIDERATION, P. 9
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 3rd day of November, 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
fll U.S. Mail
0 "acsimile
Federal Express
Don Howell
Idaho Public Utilities Commission
472 West Washington
Boise, ID 83702
Telephone: [phone]
Fax: [phone]
%Hand Delivery
0 U.S. Mail
Facsimile
Federal Express
QWEST CORPORATION'S RESPONSE AND CROSS-PETITION TO PAGEDATA AND WAVESENT'
PETITION FOR RECONSIDERATION, P. 10
.............................................. ..........................................................................................................................................................................................................,........""",,""-""""-"""".......,.........-......-.......
Federal Communications Commission
Washington, D.C. 20554
S. Mail
October 25 t 2004
Mr. Joseph MeN e~d
6610 Overland Road
Boise, ID 83709
[phone] (facsimile)
Re:In the Matter of the Application of PageData for Approv~l of an
Amendrnent to a Paging Interconnection Agreement with Qwest
Corporation Pursuant to 47U.C. ~ 252~ Case No. QWE~T..O3..
In the Matter of the Applioation of Wave Sent, LLC for Approval of an
Amendment to 11 Paging Interconnection Agreement with Qwest
Corporation Pursuant to 47 V.~ 252) QWE..O3-
Idaho Public Utilities Commission Order No. 29604
Dear M.r. McNeal;"
T~s letter responds to your October 20) 2004 letter to Alexander Starr, Chief of
the Markets Dispute Resolution Division of the Federal Comm1.U1ications Conuni$siol1 '
FCC'U) EnforceJ11ent Bureau regarding the above..referenced matter. In your letter, you
ask for guidance with respect to IPUC Order No. 29604~
In respon$e to yot1! letter J I participated in a conference call with you. and counsel
for Qwcst on October 22 2004. During that call, I explained that the FCC's infonnal
dispute tesoh;~tjon processes are not intended or designed to result in a Commission
determinatio~ decision., and/or order resolving the merits of an informal dispute.
Informal disputes such as yours are typical1y closed without any fonnal decision by the
Commission, whether or nottl1ey are ultimately settled by the parties.
EXHIBIT
Consistent with our practice in handling informal disputes, Commission staff
facilitated 4iscu$$ions between you and Qwest in 2003 regat'4ing an apparent dispute
involving Qwest's alleged refusal to allow your company to opt into existing
interconnection agreements, I understand that that dispute was resolved and your
company ultimately opted into various interconnection agreements with Qwest.
Subsequently, in respon$e to an apparent attempt by your company to take service 'Under
one or maTeo! these interconnection t1g1:eements, Qwest sent the .Tune 4, 2003 email
attached to your October 22nd letter. Commission staftreceived theemail but did not
take any PQsitian with respect to Qwest's ema.il and did not adopt or endorse this email as
a formal or illfonnal resolution of the dispute you were apparently baving with Qwest
concenring ordering service, a dispute which differs from the opt..in dispute you initially
asked Cormnission staff to mediate.
It appears from your letter thij,t your present dispute with Qwest concerns whether
tbe Qwest email should be considered an amendment to one or more of your existing
interconnection agreements under section 252 of the Communications Act of 1934,
amended (it. Act ). As. I indicate4. Commission staffwas not asked to and did not make
any determination as to the substanc;e, effect, JegaUty,andlo! enforceabiJityofthe
referenced ema.il under the goven1ing la.\v. Thus, Commission staff never considered
whether the email was a valid section 252 amendment, nor would it have been
appropriate for Commission staff to make that determinatioll. given that section 252 gives
state commissions the exclusive right to make such detenninations in the first instance.
Do not hesitate to contact me if you have any additional questions.
meere ly)
Anthony J. Delaurentis
Attorney
Markets Dispute Resolution Division
Enforcen1ent Bureau
Federal CotnmlmiC11-tions Com.tnission
cc:Robert ~oKel1na., QwestCounsel (303) 896..1107 (facsinule)
Timothy Boucher) Qwest Counsel [phone] (facs imiJ