20050614Order No 29800.pdf

Office of the Secretary
Service Date
June 14 2005
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
JOSEPH B. MCNEAL dba P AGED A T A
Petitioner/Appellant,
IDAHO PUBLIC UTILITIES COMMISSION,
Respondent on Appeal,
and
QWEST CORPORATION,
Respondent/Respondent on AI!Peal.
SUPREME COURT
DOCKET NO. 31844
IPUC CASE NO. QWE-03-
ORDER SETTLING AGENCY'
RECORD ON APPEAL
ORDER NO. 29800
On April 19, 2005, PageData filed a Notice of Appeal from Commission Order Nos.
29687 and 29726 in the above referenced case. In its Notice of Appeal PageData requested that
in addition to those documents automatically included in the Appellate Record pursuant to
Appellate Rule 28(b)(3), the entire Commission file for a different case, Case No.QWE-03-
be included in the Record on Appeal. Notice of Appeal at 3. Pursuant to PageData s request, the
Commission Secretary included the requested documents from Case No. QWE- T -03-6 ("the 03-
Case ), in the proposed Appellate Record for this case, No. QWE-03-25. On May 10, 2005
the Commission Secretary served the proposed Record on Appeal on the parties.
On May 19, 2005, the Commission Staff filed an Objection to the Agency s Record
on Appeal objecting to the inclusion of most of the 03-6 Case documents in the Record on
Appeal in this case. The Staffs Objection was made pursuant to Appellate Rules 29(a) and
13(e). On May 20, 2005, Qwest filed a "Joinder to Objection" supporting the Staffs objections.
On May 23 , 2005 , the Commission issued a Notice of Hearing to consider Staff and Qwest's
objections to the proposed Record as required by LA.R. 29(a).
ORDER NO. 29800
THE STAFF'S OBJECTIONS
With the exception of the four documents noted in the footnote below, the Staff
objected to including documents from an entirely different case file in this Record on AppeaL!
The Staff argued that the remaining documents contained in the Commission s 03-6 Case "are
not relevant to the current appeal, were not considered by the Commission in the resolution of
Case No. QWE-03-, and concern an entirely separate matter with separate issues that were
resolved by its own final Order No. 29604 and Order No. 29655 (denying reconsideration).
Staff Objection at 4. Staff asserted that PageData did not file a Notice of Appeal in the 03-
Case and "it is now well past the deadline to do so.Id. The Order denying reconsideration in
the 03-6 Case was Order No. 29655 issued December 9, 2004. Thus, it is well after the 42-day
deadline for filing a Notice of Appeal. The Staff asserted that judicial review is clearly confined
to the record presented to the Commission as the finder of fact. Greenfield Village Apartments
Ada County, 130 Idaho 207, 938 P.2d 1245 (1997), and that "No new or additional evidence may
be introduced in the Supreme Court, but the appeal shall be heard on the record of the
commission as certified by it." Idaho Code 9 61-629.
In summary, the Staff argued, to which Qwest agreed, that PageData cannot, in the
appeal of this case, No. QWE- T -03-, argue issues decided in a separate and completely
different administrative case, No. QWE-03-6. Consequently, the objected documents
(proposed R. at 90-92 and 100-217) should be stricken from the proposed record. Staff
Objection at 4.
THE SETTLEMENT HEARING
In accordance with Appellate Rule 29(a) and the Commission s Rules of Procedure
IDAPA 31.01.01.000 et seq.the Commission issued a Notice of Hearing on May 23 2005. The
Commission convened a hearing on June 8, 2005 to hear Staffs objections, and any response
thereto. Appearing for the Commission Staff was Donovan E. Walker Deputy Attorney
General, and appearing for Qwest Corporation was William J. Batt, Batt & Fisher, LLP. Neither
Mr. McNeal dba PageData nor any representative thereof, appeared at the hearing. Argument
1 Staff and Qwest did not object to: (1) the Qwest-Arch Paging Interconnection Agreement adopted by PageData
(proposed R. at 69-74); (2) the Amendment to the adopted Interconnection Agreement (proposed R. at 81-89); and
(3) the Commission Order Nos. 29198 and 29293 (proposed R. 75-80 and 93-99) approving the adoption of the
Qwest-Arch Interconnection Agreement and the Amendment to the Interconnection Agreement respectively. See
Staff Objection at n.
ORDER NO. 29800
was heard from Commission Staff and Qwest Corporation. The Commission, after recessing for
deliberations, issued an oral ruling from the bench, and now issues this Order.
FINDINGS
Having considered the oral argument and upon review of the documents in question
as well as the applicable laws and rules, we find that Staffs Objection is well taken and that it
should be sustained. We find that the Commission has proper authority and jurisdiction over this
matter pursuant to I.A.R. 13(e) and 29(a). We find that the documents in the proposed Record
on Appeal, Volume I, pages 90-92 and 100-217 should not be included in the Record on Appeal.
These documents were not considered by the Commission in the resolution of the case currently
on appeal, QWE- T -03-, and are therefore not relevant. It is undisputed that the objected
documents originated in a different case. These documents concern a separate matter from that
which is currently on appeal. This separate matter was resolved by its own final Orders that
were not appealed by PageData within the time limitations allowed by law.
Allowing this material to now be included in the Record on Appeal would be
contrary to Idaho Code 9 61-629 ("No new or additional evidence may be introduced in the
Supreme Court, but the appeal shall be heard on the record of the commission as certified by
it."); and contrary to Castaneda v. Brighton Corporation 130 Idaho 923 n., 950 P.2d 1262 n.
(1998) Gudicial review is limited to the record developed below). Additionally, after review of
PageData s preliminary statement of issues from its Notice of Appeal, the Commission is
mindful of a recent statement from our Supreme Court in Regan v. Kootenai County, that "the
focal point for judicial review should be the administrative record already in existence, not some
new record made initially in the reviewing court." 148 Idaho 721 , 725 100 P.3d 615 619 (2004)
quoting Camp v. Pitts 411 U.S. 138, 142, 93 S.Ct. 1241 , 1244 (1973).
ORDER
IT IS HEREBY ORDERED that Staffs Objection to portions of the proposed
Record on Appeal is sustained and granted. The Commission Secretary shall remove pages 90-
92 and 100-217 from Volume I of the proposed Record.
IT IS FURTHER ORDERED that, with the changes noted above, the Record on
Appeal shall hereby be deemed SETTLED pursuant to this Order and as authorized by LA.R. 29.
ORDER NO. 29800
IT IS FURTHER ORDERED that the Commission Secretary is instructed to forward
the settled Record on Appeal, including a copy of this Order, to the Idaho Supreme Court and to
the parties consistent with the Idaho Appellate Rules.
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this 1'f-f1\.
day of June 2005.
MARSHA H. SMITH, COMMISSIONER
ENNIS S. HANSE , OMMISSIONER
ATTEST:
~~.
9fd1D. Jewell
mission Secretary
O:QWET0325 Pager Appeal 29800 Settling Record
ORDER NO. 29800