20041209Reconsideration Order No 29655.pdf

Office of the Secretary
Service Date
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
December 9, 2004
IN THE MATTER OF THE APPLICATION OF
AGEDA T A FOR APPROVAL OF AN AMENDMENT TO A PAGING
INTERCONNECTION AGREEMENT WITH
QWEST CORPORATION PURSUANT TO 47
C. ~ 252(e).
IN THE MATTER OF THE APPLICATION OF
W A VESENT, LLC FOR APPROVAL OF AN
AMENDMENT TO A PAGING
INTERCONNECTION AGREEMENT WITH
QWEST CORPORATION PURSUANT TO 47 C. ~ 252(e).
CASE NO. QWE- T -03-
CASE NO. QWE-03-
ORDER NO. 29655
In August 2004, PageData and WaveSent, LLC (hereinafter the "Pagers ) each filed a
Revised Application for approval of an amendment to their respective paging interconnection
agreements with Qwest Corporation. The proposed amendment was in the form of an e-mail that
the Pagers contend was a Settlement Agreement in "two informal complaints filed with the
Federal Communications Commission" (FCC). In Order No. 29604 issued October 6, 2004, the
Commission referred this matter to the FCC and, consequently, dismissed the matter without
prejudice.
On November 8, 2004, the Pagers filed a timely Petition for Reconsideration
asserting that the Commission erred by referring this matter to the FCC. On November 3, 2004
Qwest filed a timely Answer to the Petition for Reconsideration and a Cross Petition urging the
Commission to deny reconsideration. On November 8 , 2004, the Pagers submitted a Reply to
Qwest's Answer and Cross Petition. As set out in greater detail below, the Commission denies
the Pagers' Petition for Reconsideration.
BACKGROUND
The procedural history of this case is set out in detail in Order No. 29604 but the
pertinent points are summarized here. In their Revised Applications, the Pagers assert that an e-
mail purportedly from Qwest's FCC counsel Bob McKenna, dated June 4, 2003 amends
Section 2.4 of their respective interconnection agreements with Qwest. The Pagers alleged the
amending e-mail "was reached through voluntary negotiations of two informal complaints filed
ORDER NO. 29655
with the (FCC). The settlement (e-mail) has forward-looking terms and clarifies and amends
Section 2.4 of the Agreement." Order No. 29604 at 2 quoting the Pagers' Applications at
Qwest subsequently filed a Motion to Dismiss the Pagers' Revised Applications.
Qwest maintained the McKenna e-mail does not represent either negotiations or an amendment
to the underlying interconnection agreements. Qwest asserted it did not agree to any amendment
of the interconnection agreements and argued that even a cursorary review of the e-mail does not
support the Pagers ' contention. Qwest pointed out that the e-mail does not even state how or in
what manner it changed the existing interconnection agreements.
In Order No. 29604, the Commission observed that the parties disagree whether the e-
mail was the product of voluntary negotiations or whether the e-mail amends Section 2.4 of the
underlying agreements. The Commission found that the only area of agreement between the
parties is that the e-mail arose in the context of an FCC informal proceeding. Order No. 29604 at
4 ("Clearly, the McKenna email responds to issues in an informal FCC proceeding.
However, this Commission was not a party to the FCC proceeding. 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. The FCC is the agency with primary jurisdiction over
both the Pagers and Qwest. The FCC Staff also conducted the informal
proceeding and its Staff is presumably familiar with the context in which the
e-mail arose.
Id. After deciding to refer the matter to the FCC, the Commission found that it was reasonable
to dismiss the Revised Applications without prejudice.
THE PETITION FOR RECONSIDERATION
In their Petition for Reconsideration, the Pagers assert the Commission erred in
referring this matter to the FCC for three primary reasons. First, the Pagers allege that because
the McKenna e-mail amends existing interconnection agreements, the Commission must either
approve or reject the e-mail amendment within 90 days pursuant to 47 D.C. 9252(e).1 The
Pagers describe the present dispute as Qwest reneging "on the delivery of Internet traffic set out
1 In pertinent part, Section 252( e) of the federal Telecommunications Act provides that any "interconnection
agreement (or amendment to an interconnection agreement) adopted by negotiation. . .shall be submitted for
approval to the State conunission. A State conunission. . .shall approve or reject the agreement. . .. If the State
conunission does not act to approve or reject the (negotiated) agreement (or amendment) within 90 days. . .the
agreement (or amendment) shall be deemed approved." 47 D.c. 9 252(e)(1) and (4).
ORDER NO. 29655
in paragraphs 3 of the McKenna letter.Petition for Reconsideration at 2-3. In pertinent part
the third paragraph of the McKenna e-mail states that
there does not seem to be any dispute that compensation will be necessary for
services provided under current interconnection agreements. Such
compensation can be required in the case of transiting traffic and W A TS or
FX equivalent facilities, on the one hand, and reciprocal compensation on the
other hand. Should PageData or WaveSent use interconnection facilities or
services for internet traffic. such traffic would not be subiect to reciprocal
compensation payments
Exhibit A (emphasis added). Because the e-mail functions as a voluntary amendment, the
Commission must approve or reject within 90 days.
Second, the Commission s referral of this matter to the FCC conflicts with the
Commission s Order No. 29154 in Case No. QWE- T -02-17. This prior case addressed the issue
of unfiled interconnection agreements. In Order No. 29154 the Commission ordered Qwest "
review any and all agreements to determine whether they should be filed with the Commission
under the provisions" of the federal Telecommunications Act of 1996 and a recent FCC order.
The referenced FCC order was in response to a Petition for Declaratory Ruling filed
by Qwest. In its Order, the FCC found that agreements that create ongoing obligations
commensurate with interconnection are indeed interconnection agreements. Order No. 29154 at
citing FCC Memorandum Opinion and Order, Qwest Corporation s Petition for Declaratory
Ruling, 17 FCC Rcd 19337 ~ 8 (Oct. 4, 2002).However, the FCC also determined that
agreements which simply provide for "backward looking consideration" need not be filed as
interconnection agreements. Id. citing 17 FCC Rcd 19337 at ~ 12. In essence, the Pagers
maintain that paragraph 3 of the McKenna e-mail constitutes a prospective interconnection
obligation and it must be filed.
Third, Order No. 29604 instructed the Pagers to contact the FCC's Markets Dispute
Resolution Division for guidance on how to process the referral. In compliance with this
directive, the Pagers, Qwest and FCC staff held a conference call on October 22, 2004. In a
letter dated the following day, a Division attorney advised Qwest and the Pagers that the FCC
staff did not make any determination whether the McKenna e-mail was a valid amendment. The
letter concluded that the Idaho Commission should "make such determinations in the first
2 These obligations include resale, number portability, dialing parity, unbundled network elements, access to right-
of-way reciprocal compensation, interconnection, or collocation. 47 D.C. 9 252(b) and (c).
ORDER NO. 29655
instance.FCC Letter at 2. Consequently, the Pagers assert that the FCC "referred the case back
to the Commission.
QWEST'S ANSWER AND CROSS PETITION
In its Answer and Cross-Petition Qwest insisted the Commission did not err
referring this matter to the FCC. Qwest Answer at 6. Qwest stated that the Commission
actions were reasonable given the ambiguity in the e-mail and the fact that the e-mail arose in an
informal FCC proceeding. Id.
Qwest also alleged that the referral is not contrary to prior Order No. 29157. Qwest
observed that the Commission found it was unclear whether the e-mail did indeed amend the
parties' interconnection agreements. "Finding no clear amendment, it cannot be said that the
Commission violated any requirement of Order No. 29154.Id. at 7.
Qwest asserted in its Cross Petition that there are at least two grounds to affirm the
referral to the FCC. Qwest first maintained that the Pagers carry the burden of demonstrating
that the McKenna e-mail constitutes a "voluntarily negotiated amendment" to the underlying
interconnection agreements. Qwest cites to the case of Inland v. Comstock 116 Idaho 701 , 703
779 P.2d 15, 17 (1989) for the proposition that the party alleging that a contract has been formed
has the burden of proving that the parties mutually assented to the contract. Although Qwest has
not denied that its counsel transmitted the e-mail to the Pagers, Qwest disputed that the e-mail
amends any portion of the underlying interconnection agreements.
Second, Qwest noted that Section 13.23 of the underlying interconnection agreements
requires the parties to mutually agree in writing to amend their interconnection agreements.
Qwest Answer at 8. Qwest asserted that the Pagers have failed to demonstrate that Qwest has
agreed to amend the interconnection agreement. Thus, Order No. 29604 should be affirmed.
DISCUSSION AND FINDING
Reconsideration provides an opportunity for a party to bring to the Commission
attention any issue previously determined and provides the Commission with an opportunity to
rectify any mistake or omission. Washington Water Power Company v. Kootenai Environmental
Alliance 99 Idaho 875, 591 P.2d 122 (1979).The Pagers generally maintain that the
Commission erred in referring this matter to the FCC. After reviewing the Pagers' Petition for
Reconsideration and the other pleadings in this case, we affirm our prior Order.
ORDER NO. 29655
Both our prior Order No. 29604 and the Pagers acknowledge that the McKenna e-
mail arose in the context of an FCC proceeding. In particular, the Commission found that it was
reasonable to refer this case to the FCC because: (1) the Commission was not a party to the FCC
informal complaint proceeding; (2) the FCC has primary jurisdiction over both the Pagers and
Qwest; and (3) the FCC Staff conducted the informal proceeding; therefore, its Staff is more
familiar with the context in which the e-mail arose. Order No. 29604 at 4. The conclusion of the
FCC letter notwithstanding, these findings support the referral.
The Pagers ' arguments regarding Section 252( e) and the inconsistency with our
Order No. 29154 are not applicable. These two arguments presume that the e-mail is in fact an
amendment to an interconnection agreement. Here the Commission made no such finding
because we referred the matter to the FCC. As we observed above, the Pagers assert in their
Petition that the third paragraph of the e-mail concerns the delivery of Internet traffic but the
subject paragraph addresses reciprocal compensation for Internet traffic. Compare McKenna e-
mail and Petition at
Our decision to refer this matter to the FCC under the doctrine of primary jurisdiction
is subject to review under the abuse of discretion standard. The test for determining whether the
Commission abused its discretion is based upon a three-part inquiry whether the Commission:
(1) correctly perceived the issue as one of discretion; (2) acted within the outer boundaries of
discretion and consistently with applicable legal standards; and (3) reached its decision by an
exercise of reason. Sun Valley Shopping Ctr. v. Idaho Power Company, 119 Idaho 87, 89, 803
2d 993 , 1000 (1991). In this particular case, the Commission concluded that the FCC was the
more appropriate agency to determine whether the e-mail constituted an amendment to the
parties' interconnection agreement. The FCC is the federal agency entrusted with implementing
the federal Telecommunications Act of 1996. Moreover, it is the FCC's Order in response to
Qwest's Petition for Declaratory Ruling that lays out the framework for determining when
interconnection agreements must be filed. Finally, the e-mail arose in an FCC proceeding.
Consequently, we find that our referral of this matter to the FCC is not an abuse of our
discretion.
ORDER NO. 29655
ORDER
IT IS HEREBY ORDERED that the Petition for Reconsideration filed by PageData
and WaveSent, LLC, is denied. The Commission affirms its prior Order No. 29604 referring this
matter to the FCC.
IT IS FURTHER ORDERED that given the Commission decision to deny
reconsideration, Qwest's Cross Petition for Reconsideration is also denied pursuant to Idaho
Code 9 61-626(1).
THIS IS A FINAL ORDER ON RECONSIDERATION.
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this 9+"-
day of December 2004.
UL KJELLANDER, PRESIDENT
Out of the Office on this Dat
MARSHA H. SMITH, COMMISSIONER
ATTEST:
J n D. Jewel
mmission Secretary
vld/O:QWET036 - QWET03 7- dh2
ORDER NO. 29655