20050119Final Order No 29687.pdf

Office of the Secretary
Service Date
January 19 2005
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
JOSEPH B. McNEAL, DBA P AGEDA T A
CASE NO. QWE- T -03-
COMPLAINANT
VS.
QWEST CORPORATION, INC.ORDER NO. 29687
RESPONDENT.
On October 31 , 2003 , Joseph McNeal dba PageData filed a "formal" Complaint
against Qwest Corporation. PageData alleged that Qwest is not in compliance with the
reciprocal compensation provisions of their Interconnection Agreement. In November 2003
Qwest submitted a "limited" response to PageData s Complaint. Qwest urged the Commission
to refrain from opening a docket and suggested that PageData s Complaint should be dismissed.
Qwest did not address the merits of PageData' s Complaint. In December 2003 PageData filed a
Reply to Qwest's limited response.
In January 2004 PageData filed a Request for Summary Judgment. On August 18
2004, PageData filed a Supplemental Memorandum supporting its Complaint. Attempts by the
parties to settle this Complaint (and other cases) have been unsuccessful. For reasons set out in
greater detail below, the Commission declines jurisdiction to resolve this Interconnection
Agreement dispute.
BACKGROUND
In Order No.28499 issued September 1, 2000 , the Commission approved an
Interconnection Agreement between Qwest and Arch Paging. In January 2003, the Qwest-Arch
Interconnection Agreement was amended and subsequently approved by the Commission in
Order No. 29178. In February 2003 , Qwest and PageDatajointly filed an Application requesting
that the Commission approve PageData s adoption of the Arch Interconnection Agreement (as
amended) under the federal Telecommunications Act of 1996, 47 V.C. ~ 252(i). The joint
Application stated that the parties' adoption of the Arch Agreement "was reached through
voluntary negotiations." The Commission subsequently approved PageData s adoption of the
amended Arch Agreement. Order No. 29198 at 3
ORDER NO. 29687
PAGEDATA'S COMPLAINT
In its Complaint, PageData alleged first that Qwest has misbilled PageData under the
adopted Arch Agreement, and second that Qwest has refused to correct the billing. PageData
requested that the Commission direct Qwest to correct the billing on Account BAN208R51-
0454-454. In addition, PageData sought an Order from this Commission to require Qwest to
remit cash payments to PageData for reciprocal compensation or, at a minimum, to issue credits
for the reciprocal compensation to specific accounts designated by PageData.
Under the adopted Arch Agreement, PageData asserted it is "in a unique position
(because J Qwest owes PageData more money per month than PageData owes Qwest" as a result
of reciprocal compensation. Complaint at 2. PageData maintained Qwest has refused to issue
cash payments for reciprocal compensation "because of prior disputed accounts.Id. at 3.
PageData alleged Qwest's failure to make reciprocal compensation payments or provide credits
violates Section 12.3 of the parties' Interconnection Agreement. Section 12.3 allows either party
to dispute any portion of the monthly billing and both parties agree to expedite investigation of
any dispute. This section also provides that either party may withhold "up to four months worth
of disputed charges not to exceed $100 000 in the aggregate.Id.
PageData argued Qwest should not be allowed to violate the terms of the approved
Interconnection Agreement by mixing current interconnection disputes with "past disputes that
are before authoritative bodies that have jurisdiction to settle those disputes...." Complaint at 7.
PageData insisted the terms of its Interconnection Agreement should control regardless of past
disputes with Qwest.
PageData stated it filed its formal complaint pursuant to the federal
Telecommunications Act of 1996 and Section 13.14 (Dispute Resolution) of its Interconnection
Agreement. Section 13.14 of the Interconnection Agreement addresses disputes. This section
provides in pertinent part:
If any claim, controversy or dispute between the Parties, their agents
employees, officers, directors, or affiliated agents ("Dispute cannot be
settled through negotiation. it shall be resolved by arbitration under the then
current rules of the American Arbitration Association ("AAA"
).
The
arbitration shall be conducted by a single neutral arbitrator familiar with the
1 PageData and Qwest are opposing parties in Idaho Supreme Court Appeal No. 29175. The appeal concerns billing
disputes that arose before the parties entered into their first Interconnection Agreement.
ORDER NO. 29687
telecommunications industry and engaged in the practice of law. ... The
Federal Arbitration Act, 9 U.C. Secs. 1-, not state law, shall govern the
arbitratability of all Disputes. The arbitrator shall not have authority to award
punitive damages. All expedited procedures prescribed by the AAA rules
shall apply and the rules used shall be those for the telecommunications
industry. The arbitrator s award shall be final and binding and may be entered
in any court having jurisdiction thereof. The prevailing Party, as determined
by the arbitrator, shall be entitled to an award of reasonable attorneys ' fees
and costs. The arbitration shall occur at a mutually agreed upon location.
Nothing in this Section shall be construed to waive or limit either Party s right
to seek relief from the (Idaho 1 Commission or the FCC as provided by state or
federal law.
Adopted Qwest-PageData Interconnection Agreement, ~ 13.14 (emphasis added).
QWEST'S RESPONSE
In its "limited" response to PageData s Complaint, Qwest asserted the Commission
should decline to docket a complaint proceeding and "should dismiss PageData s Filing." Qwest
Response at 2. Qwest specifically stated that its limited response does not constitute an
Answer" under the Commission s procedural Rule 57, IDAPA 31.01.01.057. Qwest maintained
that the parties' Interconnection Agreement sets out detailed procedures for resolving disputes
but PageData has entirely ignored that contractual obligation.Id. at 2. Because the substance
of PageData s Complaint is a contract dispute under their Interconnection Agreement, Qwest
urged the Commission to decline jurisdiction and instead direct the parties to utilize the dispute
resolution provisions of their Agreement.
Qwest further asserted that the procedures for addressing PageData' s Complaint are
addressed by Section 13.14 (set out above) of the parties ' Interconnection Agreement. Given
that the subject matter of PageData s Complaint arises under their adopted and Commission-
approved Interconnection Agreement, Qwest insisted PageData is contractually bound to follow
the dispute resolution procedures called out in the Agreement.
Qwest next asserted there is no federal or state law clearly granting the Commission
jurisdiction over disputes arising from an Interconnection Agreement. The Company maintained
that generally the construction and enforcement of contract rights in Idaho is a matter that lies in
the jurisdiction of the courts and not this Commission. Bunker Hill Company v. Washington
Water Power Company, 101 Idaho 493 616 P.2d 272 (1980). Thus, Qwest questioned whether
the Commission is the proper forum to address PageData s contract Complaint.
ORDER NO. 29687
Finally, Qwest asserted that Idaho law strongly favors the enforcement of contractual
arbitration clauses. As set out above, Section 13.14 provides that unresolved disputes between
the parties shall be resolved by arbitration. Qwest noted arbitration is a favored remedy for
disputes. International Assoc. of Firefighters, Local No. 672 v. City of Boise 136 Idaho 162, 30
3d 940 (2001). For these reasons, Qwest urged the Commission to dismiss the complaint and
not initiate a complaint proceeding.
PAGEDATA'S REPLY
In its Reply, PageData urged the Commission to reject Qwest's assertion that the
Commission has no jurisdiction over this complaint. The Pager insisted the Commission has
jurisdiction to resolve disputes concerning interconnection agreements.More specifically,
PageData asserted that Idaho Code ~~ 62-614 and 62-615(1) provides the Commission with the
requisite statutory authority to investigate and resolve this dispute. PageData relied on the
Commission s Order No. 29219 in the ITA/Illuminet v. Qwest case (No. QWE-02-11) for
support. In that case, the Commission noted that Idaho Code ~ 62-615(1) gives the Commission
full power and authority to implement the federal telecommunications act of 1996." PageData
Reply at 326 quoting Order No. 29219 at n.1. In addition, the Pager maintained that Idaho Code
~ 62-6142 provides broad authority to the Commission so that it may "resolve disputes between
incumbent telephone companies, like Qwest, and other telephone service providers.Id.
quoting Order No. 29219 at 4.Consequently, PageData believes that the Commission has
jurisdiction to entertain PageData s Complaint.
PageData also asserted that the Commission "is responsible for enforcing the pricing
schedules and reciprocal compensation terms on interconnection agreements that (the
CommissionJ approved (Idaho Code ~ 62-614).PageData Reply at 9. PageData insisted the
Commission "is compelled by Idaho statute to investigate all commercially filed formal
complaints and enforce all provisions of interconnection agreements that are filed within the
state of Idaho....Id.
Idaho Code ~ 62-614(1) states:
If a telephone corporation providing basic local exchange service which has exercised the election
provided in section 62-604(2)(a), Idaho Code, and any other telephone corporation subject to title
, Idaho Code, or any mutual, nonprofit or cooperative telephone corporation, are unable to agree
on any matter relating to telecommunication issues between such companies, then either telephone
corporation may apply to the commission for determination of the matter.
ORDER NO. 29687
PageData explained that Section 13.14 of the Interconnection Agreement provides for
three methods of dispute resolution. "Qwest has the ability to take PageData to arbitration; file a
complaint at the (Idaho J Commission where the services are being provided; or file a complaint
at the FCC in order that Qwest may request an order to demand payment or disconnect services.
Id. at 16. Instead of pursuing one of these three methods of dispute resolution, Qwest took
unilateral action by withholding reciprocal compensation. Consequently, PageData stated that
Qwest's conduct leaves the decision on which dispute resolution alternative to utilize "
PageData alone.Id. at 1. After PageData filed this complaint, Qwest should now be prohibited
from dictating a different course of dispute resolution. Id. at 19.
THE REQUEST FOR SUMMARY JUDGMENT
In January 2004 PageData filed a "Request for Summary Judgment." In its Request
PageData stated that Qwest is correcting the disputed invoices in this matter but is "still not
agreeing to remit payment for reciprocal compensation due PageData.PageData Summary
Judgment at 2. PageData insisted that its entitlement to reciprocal compensation under the
Interconnection Agreement more than offsets the charges billed by Qwest.
DISCUSSION AND FINDINGS
After having reviewed the pleadings in this case, we decline PageData s invitation to
resolve its Interconnection Agreement dispute with Qwest. It is undisputed that both Qwest and
PageData voluntarily agreed to adopt the Qwest-Arch Paging Interconnection Agreement
pursuant to 47 U.C. ~ 252(i). Section 13.14 of the Interconnection Agreement contains an
arbitration provision for the resolution of disputes between the parties.The Commission
approved PageData s Interconnection Agreement with Qwest in Order No. 29198. A review of
the arbitration provision is instructive.
Section 13.14 provides that any dispute between parties "shall be resolved by
arbitration." (Emphasis added.) This section states that the arbitration will be conducted under
the rules of the American Arbitration Association (AAA) and the arbitrator s decision "shall be
final and binding." The parties also agreed to utilize all "expedited procedures prescribed by the
AAA rules" and the prevailing party "shall be entitled to an award of reasonable attorneys' fees
and cost." Simply put, the Interconnection Agreement contains detailed procedures for utilizing
the AAA arbitration rules to resolve disputes.
ORDER NO. 29687
Based upon our reVIew of Section 13., we find that the parties clearly
contemplated utilizing arbitration when they cannot resolve their dispute informally. Our
Supreme Court has recognized that there is a strong public policy in favor of arbitration and that
arbitration "is a favored remedy" for resolving disputes. International Assoc. of Firefighters
Local 672 v. City of Boise 136 Idaho 162, 168 , 30 P.3d 940, 946 (2001). The Supreme Court
recognizes that the:
essential nature of arbitration is that the parties, by consensual agreement
have decided to substitute the final and binding judgment of an impartial
entity conversant with the (telecommunications andJ business world for the
judgment of the courts. They seek to avoid the cost, in both time and money,
of formal judicial dispute resolution.
Driver v. SI Corporation 139 Idaho 423, 426 , 80 P.3d 1024, 1027 (2003) quoting Hecla Mining
Co. v. Bunker Hill Co.101 Idaho 557, 562, 617 P.2d 861 , 866 (1980). Here the parties agreed
to include an arbitration clause in their contract. Although section 13.14 does not limit the
parties right to seek relief from this Commission, the arbitration process is the first and foremost
method for resolving disputes under the Interconnection Agreement.
We further find PageData s reliance on Idaho Code ~ 62-614 is misplaced. This
statute authorizes the Commission to resolve disputes between a Title 61 local exchange
company (LEC) and a telephone corporation that has elected to remove its non-local services
from regulation under Title 61 (i., Qwest). However, PageData is not a Title 61 LEC providing
local exchange service. Under Idaho law, telephone corporations providing radio paging
services "are exempt from any requirements of title 61 , or chapter 6, title 62, Idaho Code.
Idaho Code ~ 61-121. See also Idaho Code ~~ 62-603 (13) and (14).
Even though the Commission declines jurisdiction in this case PageData is not
without a remedy. As PageData recognized, it may submit this dispute to arbitration or the FCC
under Section 13.14. Consequently, we decline PageData s request to resolve its reciprocal
compensation complaint against Qwest.
ORDER
IT IS HEREBY ORDERED that the Commission declines to accept jurisdiction to
resolve PageData s Complaint regarding reciprocal compensation. Consequently, we dismiss
PageData s Complaint without prejudice.
ORDER NO. 29687
THIS IS A FINAL ORDER. Any person interested in this Order (or in issues finally
decided by this Order) or in interlocutory Orders previously issued in this Case No. QWE-03-
25 may petition for reconsideration within twenty-one (21) days of the service date of this Order
with regard to any matter decided in this Order or in interlocutory Orders previously issued in
this Case No. QWE- T -03-25. Within seven (7) days after any person has petitioned for
reconsideration, any other person may cross-petition for reconsideration. See Idaho Code ~ 61-
626.
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this /1 ~
day of January 2005.
PAULKJELLA
MARSHA H. SMITH, COMMISSIONER
ATTEST:
~LG
J a ! D. Jewell
Cdrtnnission Secretary
bls/O:QWET0325
ORDER NO. 29687