20041001Decision Memo.pdf

DECISION MEMORANDUM
TO:COMMISSIONER KJELLANDER
COMMISSIONER SMITH
COMMISSIONER HANSEN
COMMISSION SECRETARY
LEGAL
WORKING FILE
FROM:WAYNE HART
DATE:OCTOBER 1, 2004
RE:PAGEDATA AND W A VESENT APPLICATION FOR APPROVAL OF
AMENDMENTS TO THEIR PAGING AGREEMENTS WITH QWEST,
CASE NOS. QWE-03-6 AND QWE-03-
On August 2004 Joseph McNeal of PageD at a and Wavesent unilaterally filed an
Application for the approval of an amendment to their paging agreements with Qwest. In each
case, the amendment is an e-mail from Qwest's FCC counsel, Bob McKenna to McNeal, dated
June 4, 2003. Mr. McNeal claims that this e-mail clarifies and amends Section 2.4 of both
agreements that were previously approved by this Commission in Order No. 29198 issued in
February 2003. McNeal indicated the e-mail was the result of informal negotiations to settle two
informal complaints filed with the Federal Communications Commission (FCC). He indicated
that the e-mail contains forward-looking terms and clarifies the existing agreement and "
accordance with the Federal Communications Commission s Notice of Apparent Liability in the
Matter of Qwest Corporation Apparent Liability for Forfeiture on March 12, 2004", and Section
252(e) of the Telecommunications Act of 1996, is required to be filed for approval by this
Commission.
On September 28, Qwest filed a motion to dismiss this petition, claiming that the e-mail
was not an agreement or an amendment to the existing agreement and the unilateral amendment
does not follow the amending procedures in the interconnection agreements, Qwest Motion to
Dismiss at 3.
DECISION MEMORANDUM - 1 -OCTOBER 1 , 2004
STAFF ANALYSIS
This filing is related to three other cases now pending at the Commission and a decision
in this matter may impact those cases as well. In Case No. QWE- T -03-, McNeal has filed a
formal complaint against Qwest alleging that Qwest has failed to pay reciprocal compensation in
accordance with the existing Paging agreement. In Case Nos. GNR-04-5 and GNR-04-6 the
Pagers are requesting that the Commission arbitrate the negotiations to establish new agreements
that clearly define reciprocal compensation and allowable traffic terms. The general issues in all
of these cases, as well as the amendment in these cases (QWE-03 -6/7) is: 1) whether the
Pagers may terminate enhanced and/or internet traffic over the circuits Qwest installs to carry
paging traffic to the Pagers, and 2) whether the presence of such traffic eliminates or reduces in
any way Qwest's obligation to pay reciprocal compensation to the Pagers under the terms of the
existing agreements. Staff understands that Qwest and the Pagers have been involved in
negotiations to resolve these issues. These negotiations are ongoing.
In their Applications to Amend, the Pagers assert that the current agreement does not
prohibit them from terminating enhanced and Internet traffic on these facilities. In addition, the
current agreement does not allows Qwest to refuse to pay reciprocal compensation for the paging
traffic under the fixed rate terms specified in the agreements if the Pagers also use the facilities
to carry enhanced or Internet traffic. The Pagers believe the e-mail/amendment clarifies and
supports their position.
Staff understands Qwest's position is the current paging agreement does not allow the
Pagers to terminate enhanced or Internet traffic on the facilities it provides under the paging
agreement. The presence of enhanced or Internet traffic on these facilities relieves Qwest of any
obligation to pay reciprocal compensation for the paging traffic on these facilities. Moreover
Qwest objects to the unilateral amendment of the interconnection agreements.
Staff understands that these issues were key issues in the two informal complaints filed
by the Pagers at the FCC. The Pagers claim the McKenna e-mail was intended to resolve these
issues, and that the FCC already has investigated and settled the disputed issues. Staff believes
the FCC has the prior knowledge of the intent of the e-mail, and whether it clarifies or amends
the existing agreements.
DECISION MEMORANDUM - 2-OCTOBER 1 , 2004
Paging has historically been primarily a federal issue. Pagers were primarily regulated by
the FCC, which regulated the airwaves used to provide paging services. See Idaho Code ~ 62-
603 (13 &14). Pagers purchased the wire line products used to provide its paging services from
regulated wireline companies like Qwest in accordance with the retail tariffs and price lists on
file with this Commission and the FCC. However, under the federal Telecommunications Act of
1996, the FCC has ruled that paging companies are telecommunications carriers and they are
eligible for wholesale terms in accordance with interconnection agreements. The IPUC has
jurisdiction to review and approve such interconnection agreements, and also has jurisdiction to
resolve inter-carrier disputes under Idaho Code ~ 62-616. The Commission has previous
experience with paging issues in Case No. USW - T -99-, which is now being reconsidered in
Supreme Court Docket No. 29175.
The issue of whether this e-mail constitutes an amendment to an interconnection
agreement is similar to the issues previously considered by the FCC in WC Docket No. 02-
Qwest Petition/or Declaratory Ruling, 2002 WL 31204893 at 5 , (F.C. 2002), and in the
Notice of Apparent Liability, FCC-04-, File No. EB-03-IH-0261 , NAL Acct. No.
200432080022, FRN No. 0001-6056-25. The FCC has examined scores of documents and
agreements between Qwest and other carriers in reaching its conclusions in these two cases and
is very familiar with the issues to be considered in determining whether this document is an
interconnection agreement subject to the filing and approval requirements of Section 252( e).
There is precedent for a state commission to defer an interconnection agreement issue to
the FCC in cases where the state commission determined the FCC was the more appropriate
agency to resolve the issue. Because the Pagers maintain that the e-mail represents an
amendment to the Pagers ' interconnection agreements and that the e-mail was the product of a
FCC informal proceeding, the Staff believes that the FCC is the agency with the most knowledge
of the purpose and force of the e-mail. Consequently, these cases should be referred to the FCC
for resolution.
STAFF RECOMMENDATION:
Staff recommends that the Commission issue an Order referring these cases to the FCC.
DECISION MEMORANDUM - 3 -OCTOBER 1 , 2004
COMMISSION DECISION:
Does the Commission wish to refer these cases to the FCC? Should these cases be
dismissed without prejudice?
pagedata and wavesent 3 mail amendment DM
DECISION MEMORANDUM - 4-OCTOBER 1 , 2004