20040624Application.pdf

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Mary S. Hobson (ISB# 2142)
Stoel Rives LLP
101 South Capitol Boulevard - Suite 1900
Boise, ID 83702
Telephone: [phone]
Facsimile: [phone]
msho bson~stoel. com
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Adam Sherr
Qwest
1600 ih Avenue - Room 3206
Seattle, W A 98191
Telephone: [phone]
Facsimile: [phone]
adam. sherr~qwest. com
Attorneys for Qwest Corporation
APPLICATION OF QWEST
CORPORATION FOR APPROVAL OF THE
OPERATOR SERVICES AGREEMENT
WITH CTC TELECOM, INC. FOR THE
STATE OF IDAHO
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
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L--'"CASE NO.oJ 7'
APPLICATION FOR APPROVAL OF
OPERATOR SERVICES AGREEMENT
(CTC Telecom, Inc.
Qwest Corporation ("Qwest") hereby files this Application for Approval of Operator
Services Agreement ("Agreement"). A copy of this Agreement is submitted herewith.
This Agreement was reached through voluntary negotiations without resort to mediation
or arbitration and is submitted for approval pursuant to Section 252( e) of the Communications
Act of 1934, as amended by the Telecommunications Act of 1996 (the "Act"
BACKGROUND
In the past, review and analysis of operator services agreements by state agencies and the
FCC indicated to Qwest that agreements of this type did not fall within the Section 252 filing
requirement. However, recent pronouncements by the FCC tell Qwest that such agreements
should be filed. Therefore Qwest files the Agreement in order to eliminate any questions
regarding to Qwest's compliance with Section 252.
APPLICATION FOR APPROVAL OF OPERATOR SERVICES AGREEMENT
(CTC Telecom, Inc.
Boise-172659.1 0029164-00016
Page 1
By way of background, the Commission may wish to know that the Minnesota
Department of Commerce ("the Department") initiated an investigation into Qwest's agreements
with CLECs in the fall of 2001. The Department requested and Qwest provided all of its
agreements with CLECs executed after January 1 , 2000. The purpose of the Department's
investigation and review was to determine whether Qwest had entered into agreements with
CLECs that Qwest should have filed under Section 252. Qwest provided approximately 90
agreements to the Department, which included 20 standardized agreements for the provisioning
of operator services.
On February 14 2002, the Department identified eleven CLEC agreements that should
have been filed, and listed them in a complaint filed with the Minnesota Commission. None of
the standardized agreements relating to operator services were identified by the Department in
the complaint as agreements that should have been filed under Section 252.
In the fall of2002, the FCC was reviewing Qwest's application for authority in nine
states to provide interLATA services pursuant to Section 271. As part of Qwest's application
the FCC reviewed Qwest's compliance with its obligations under Section 252 to file agreements
relating to section 251 services. In footnote 1746 of the nine-state 271 order, the FCC addressed
a directory assistance agreement and noted parenthetically that it was "not 251-related.In the
Matter of Application by Qwest Communications International, Inc. for Authorization To
Provide In-Region, InterLATA Services in the States of Colorado, Idaho, Iowa, Montana
Nebraska, North Dakota, Utah, Washington, and Wyoming, WC Docket No. 02 - 314 (reI. Dec.
, 2002), at footnote 1746.
The Arizona Commission and Staff also undertook an investigation into allegedly unfiled
agreements; Qwest provided the Arizona Staff with eight standardized directory assistance and
operator services agreements. In its testimony, filed February 21 2003 , the Arizona Staff
identified none of the operator services agreements as falling within the Section 252 filing
requirement. After the hearing and briefing were completed in Arizona in May of2003, Qwest
was willing to enter a compromise to remove the question of whether the directory assistance
agreement was subject to the filing requirement from further litigation in Arizona. Therefore
under Section 252 Qwest filed the eight-operator service agreements, as well as four other form
agreements relating to ancillary services, for a total of twelve agreements, with the Arizona
Commission on May 21, 2003.
APPLICATION FOR APPROVAL OF OPERATOR SERVICES AGREEMENT
(CTC Telecom, Inc.
Bolse-172659.1 0029164-00016
Page 2
Based on the reviews of the Minnesota Department of Commerce and the Arizona Staff
and the FCC's footnote in the nine-state 271 order, Qwest concluded that standardized
agreements relating to operator services were not within the filing requirement. Nevertheless
these reviews showed that the issue was not free from ambiguity. What is of over-riding import
however, is that no CLEC has been denied the opportunity to receive these standardized operator
services. These services always have been available to any requesting CLEC through Qwest's
SGA T, provisions in other interconnection agreements, through Qwest's website postings , or
simply through contacts with Qwest's wholesale organization.
The picture became more ambiguous on March 12 2004, when the FCC issued its Notice
of Apparent Liability (NAL) addressing Qwest's filing of the twelve Arizona agreements--eight
of which were agreements for operator services. The NAL alleged that Qwest violated the filing
requirement under Section 252 and should be assessed penalties for failing to file the twelve
Arizona agreements until May 21 2003. Qwest's response to the NAL was due May 12, 2004.
Qwest does did not agree with the NAL regarding the Arizona agreements and it certainly
does not agree that the circumstances warrant penalties due to the ambiguities regarding
standardized agreements, and the mixed messages regarding operator services agreements in
particular. However, in order to place these issues behind it and to move forward with other
more current issues, Qwest determined not to contest the NAL and paid the recommended
penalty.
Because the NAL alleged that the operator services agreements at issue in Arizona were
within the section 252 filing requirement, and because Qwest has decided not to contest this
finding, Qwest is hereby making remedial filings of all operator services agreements in each of
its other thirteen in-region states. As stated above, any delay in the filing of these agreements
had no discriminatory effect upon CLECs because these standardized services have always been
available to any requesting carrier through commission-approved SGATs, opt-in opportunities
relating to filed interconnection agreements, postings on Qwest's web site, and through contacts
with Qwest's wholesale organization.
The FCC granted Qwest a 30-day extension, or until May 12 2004, to respond to the NAL.
APPLICATION FOR APPROVAL OF OPERATOR SERVICES AGREEMENT
(CTC Telecom, Inc.
) -
Bolse-1 72659.1 0029164-00016
Page 3
CONCLUSION,
Section 252(e)(2) of the Act directs that a state Commission may reject an agreement
reached through voluntary negotiations only if the Commission finds that: the agreement (or
portiones) thereof) discriminates against a telecommunications carrier not a party to this
agreement; or the implementation of such an agreement (or portion) is not consistent with the
public interest, convenience and necessity.
Qwest respectfully submits that this Agreement provides no basis for either of these
findings, and, therefore requests that the Commission approve this Agreement. This Agreement
is consistent with the public interest as identified in the pro-competitive policies of the state of
Idaho, the Commission, the United States Congress, and the Federal Communications
Commission. Qwest further requests that the Commission approve this Agreement without a
hearing. Because this Agreement was reached through voluntary negotiations, it does not raise
issues requiring a hearing and does not concern other parties not a party to the negotiations.
Expeditious approval would further the public interest.
Respectfully submitted this 22nd day of June, 2004.
Qwest Corporation
~7L~~Mary S. obson
Stoel Rives LLP
and
Adam Sherr
Attorneys for Qwest
APPLICATION FOR APPROVAL OF OPERATOR SERVICES AGREEMENT
(CTC Telecom, Inc.
Bolse-172659.1 0029164-00016
Page 4
CERTIFICATE OF SERVICE
I hereby certify that on this 22nd day of June, 2004, I served the foregoing
APPLICATION FOR APPROVAL OF OPERATOR SERVICES AGREEMENT upon all
parties of record in this matter as follows:
Jean Jewell, Secretary
Idaho Public Utilities Commission
472 West Washington Street
O. Box 83720
Boise, Idaho 83720-0074
iiewell~puc.state.id. us
Hand Delivery
U. S. Mail
Overnight Delivery
Facsimile
Email
Rick Wiggins
CTC Telecom, Inc.
130 Superior
Cambridge, ill 83610
Hand Delivery
U. S. Mail
Overnight Delivery
Facsimile
Email
Michael C. Creamer
Givens Pursley
277 North 6th Street
Boise, ill 83701
Hand Delivery
U. S. Mail
Overnight Delivery
Facsimile
Email
k~~Brandi L. Gearhart, PLS
Legal Secretary to Mary S. Hobson
Stoel Rives LLP
APPLICATION FOR APPROVAL OF OPERATOR SERVICES AGREEMENT
(CTC Telecom, Inc.
Bolse-1 72659.1 0029164-00016
Page 5
OPERATOR SERVICES AGREEMENT
This Operator Services Agreement rAgreement") is made and entered into by and
between U S WEST Communications, Inc. ("USWC") and CTC Telecom, Inc. ("CTC"). This
Agreement may refer to CTC or to USWC as a Party ("Party ) to this Agreement. The Operator
Service(s) provided in this Agreement (the "Services ) shall be delivered in the state of Idaho.
WHEREAS, CTC desires to purchase and USWC desires to provide the Services as described
and set forth in this Agreement.
NOW THEREFORE, in consideration of the promises, mutual covenant, and agreements
contained herein, the receipt and sufficiency of which are hereby acknowledged, the Parties
agree as follows:
SCOPE OF AGREEMENT
This Agreement sets forth the terms and conditions for the provision of the Services by
USWC to CTC. The Services shall be provided , in the sole discretion of USWC, by live
operators, computers (machine), or otherwise , and includes the following:
Local Assistance - Provide assistance to CTG's end user requesting help or
information on placing or completing local calls, connecting to home NPA
directory assistance, and provide such other information and guidance, including
referral to business office and repair numbers, as may be consistent with
USWC's customary practice for providing customer assistance.
IntraLATA Toll Assistance - Provide assistance to CTC's end user requesting
help or information on placing or completing intraLATA toll calls. Nothing in this
Agreement is intended to obligate USWC to provide any toll services to CTC or
GTC's end users. USWC will direct CTC's end user to contact their carrier to
complete intraLATA toll calls. Subject to availability and capacity, access may
be provided via operator services trunks purchased from USWC or provided by
CTC via collocation arrangements to route calls to CTC's platform.
Emeraency Assistance - Provide assistance for handling the emergency local
and intra LA T A toll calls to emergency agencies of CTC's end user, including, but
not limited to, police, sheriff, highway patrol and fire. CTC will be responsible for
providing USWC with the appropriate emergency agencies numbers and
updates.
1.4 Busy Line Verify ("BL V") - Performed when CTC's end user requests assistance
from the operator to determine if the called line is in use. The operator will not
complete the call for the end user initiating the BL inquiry. Only one BL V
attempt will be made per end user call, and a charge shall apply.
5 Busy Line Interrupt rBLI") - Performed when CTC's end user requests
assistance from the operator to interrupt a telephone call in progress after BL
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has occurred. The operator will interrupt the busy line and inform the called
party that there is a call waiting. The operator will only interrupt the busy line and
will not connect CTC's end user and the called party. The operator will make
only one BLI attempt per end user call and the applicable charge applies whether
or not the called party releases the line.
Quote Service - Provide time and charges to hotel/motel and other end users of
CTC for guest/account identification.
Coin Refund ReQuests - Provide information regarding CTC's end users
requesting coin refunds.
Call Brandina Services Announces CTC's name at the introduction and
conclusion of the call, where technically feasible.
If this Agreement arises out of an interconnection agreement or agreement for the resell
of services between the Parties ("Interconnection Agreement"), then this Agreement shall
be interpreted consistent with that Interconnection Agreement and the relationship of the
Parties described therein. Further, the expiration or termination of the Interconnection
Agreement, unless otherwise agreed in writing by the Parties, shall also end this
Agreement.
TERMS AND CONDITIONS
Interconnection to USWC Services from an end office to USWC is technically feasible at
two distinct points on the trunk side of the switch. The first connection point is an
operator services trunk connected directly to the USWC Operator Services host switch.
The second connection point is an operator services trunk connected directly to a
remote USWC Operator Services switch.
Trunk provisioning and facility ownership will follow the guidelines recommended by the
Trunking and Routing, IOF and Switch sub-teams. All trunk interconnections will be
digital.
Operator Services interconnection will require an operator services type trunk between
the end office and the interconnection point on the USWC switch.
The technical requirements of operator services type trunks and the circuits to connect
the positions to the host are covered in the Operator Services Systems Generic
Requirement (OSSGR), Bellcore Document No. FR-NWT -000271 , Section 6 (Signaling)
and Section 10 (System Interfaces) in general requirements form.
Each Party s operator bureau shall accept BL V and BLI inquiries from the operator
bureau of the other Party in order to allow transparent provision of BLV/BLI traffic
between the Parties' networks.
Each Party shall route BLV/BLI traffic inquiries over separate direct trunks (not the
10callintraLATA trunks) established between the Parties' respective operator bureaus.
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uswe will perform Services provided under this Agreement in accordance with
operating methods, practices, and standards in effect for all its end users.
It is understood that USWC shall have no obligation to supply a Service where facilities
or technical abilities are limited. USWC, in its reasonable discretion, may modify and
change the nature, extent and detail of the Services from time to time during the term
hereof.
CTC will complete the ~C Operator Services/Direc ory Assistance Questionnaire for
Local Service Providers to request Services, and CTC represents that the information is
true and correct to the best of its knowledge and belief.
uswe shall maintain adequate equipment and personnel to reasonably perform the
Services. CTe shall provide and maintain the facilities necessary to connect its end
users to the place(s) where USWC provides the Services and to provide all information
and data needed or reasonably requested by USWC in order to perform the Services.
TERM AND TERMINATION
This Agreement arises out of an I nterconnection Agreement between the Parties which
was approved by the Public Utilities Commission in the state of Idaho. This Agreement
shall become effective upon the latest signature date and shall terminate at the same
time as the said Interconnection Agreement. Provided, however, either Party may
terminate this Agreement upon thirty (30) days prior written notice to the other.
CHARGES
The charges for the S~rvices provided by USWC under this Agreement are listed in
Exhibit A, attached hereto and incorporated herein by reference.
The charges listed in Exhibit A shall be subject to adjustment upon thirty (30) days prior
written notice.
BilLING
uswe will track usage and bill CTC, and GTC will pay USWC for the calls placed by
CTC's end users and facilities.
Usage will be calculated according to Option A (Price Per Message) and Option B (Price
Per Work Second and Computer Handled Calls), as defined in Exhibit A, and USWC will
charge GTC whichever is lower.
, due to equipment malfunction or other error USWC does not have available the
necessary information to compile an accurate billing statement, USWC may render a
reasonably estimated statement, but shall notify GTC of the methods of such estimate
and cooperate in good faith with CTC to establish a fair, equitable estimate. USWC
shall render a statement reflecting actual billable quantities when and if the information
necessary for the billing statement becomes available.
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CTC alone and independently establishes all prices it charges its end users for Services
provided by means of this Agreement, and USWC is not liable or responsible for the
collection of any such amounts.
A non-recurring set up and recording fee will be applicable for establishing the custom
Call Branding option, if selected. Such non-recurring charge(s) must be paid prior
commencement of the service.
Call Branding I $7, 120.
PAYMENT
Amounts payable under this Agreement are due and payable within thirty (30) days after
the date of statement.
Unless prohibited by law, any amount due and not paid by the due date stated above
shall be subject to a late charge equal to either i) 0.03 percent per day compounded
daily for the number of calendar days from the payment due date to and including, the
date of payment, that would result in an annual percentage rate of 120/0 or ii) the highest
lawful rate, whichever is less.
Should CTC dispute any portion of the statement under this Agreement , CTC will notify
USWC in writing within thirty (30) days of the receipt of such billing, identifying the
amount and details of such dispute. CTC shall pay all amounts due. Both CTC and
USWC agree to expedite the investigation of any disputed amounts in an effort to
resolve and settle the dispute prior to initiating any other rights or remedies.
CONFIDENTIAL INFORMATION
Confidential Information" means all documentation and technical and business
information , whether oral , written or visual, which is legally entitled to be protected from
disclosure, which a Party to this Agreement may furnish to the other Party or has
furnished in contemplation of this Agreement to such other Party. Each Party agrees (1)to treat all such Confidential Information strictly as confidential and (2) to use such
Confidential Information only for purposes of performance under this Agreement or for
related purposes.
The Parties shall not disclose Confidential Information to any person outside their
respective organizations unless disclosure is made in response to, or because of an
obligation to, or in connection with any proceeding before any federal , state , or local
governmental agency or court with appropriate jurisdiction , or to any person properly
seeking discovery before any such agency or court. The Parties' obligations under this
Section shall continue for one (1) year following termination or expiration of this
Agreement.
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FORCE MAJEURE
With the exception of payment of charges due under this Agreement, a Party shall be
excused from performance if its performance is prevented by acts or events beyond the
Party s reasonable control , including but not limited to, severe weather and storms;
earthquakes or other natural occurrences; strikes or other labor unrest; power failures;
computer failures; nuclear or other civil or military emergencies; or acts of legislative
judicial, executive, or administrative authorities.
LIMITATION OF LIABILITY
USWC SHALL BE LIABLE TO CTC AND CTC ONLY FOR THE ACTS OR
OMISSIONS OF USWC EXPRESSLY INCLUDING THE NEGLIGENT ACTS OR
OMISSIONS OF USWC OR THOSE ATTRIBUTABLE TO USWC , IN CONNECTION
WITH USWC'S SUPPLYING OR CTC'S USING THE SERVICES, BUT STRICTLY
ACCORDANCE WITH AND SUBJECT TO THE TERMS OF THIS AGREEMENT. IT IS
EXPRESSLY AGREED THAT USWC'S LIABILITY TO CTC, AND CTC'S SOLE AND
ONLY REMEDY FOR ANY DAMAGES ARISING IN CONNECTION WITH THE
SERVICES AND THIS AGREEMENT SHALL BE A REFUND TO CTC OF THE
AMOUNT OF THE CHARGES BILLED AND PAID BY CTC TO USWC FOR FAILED OR
DEFECTIVE SERVICES. UNDER NO CIRCUMSTANCES OR THEORY, WHETHER
BREACH OF AGREEMENT, PRODUCT LIABILITY, TORT, OR OTHERWISE, SHALL
USWC BE LIABLE FOR LOSS OF REVENUE , LOSS OF PROFIT, CONSEQUENTIAL
DAMAGES, INDIRECT DAMAGES OR INCIDENTAL DAMAGES, AND ANY CLAIM
FOR DIRECT DAMAGES SHALL BE LIMITED AS SET FORTH ABOVE. UNDER NO
CIRCUMSTANCES SHALL USWC EVER BE LIABLE TO CTC'S END USERS FOR
ANY DAMAGES WHATSOEVER.
10.INDEMNIFICATION
Each Party to this Agreement hereby indemnifies and holds harmless the other Party
with respect to any third-party claims , lawsuits, damages or court actions arising from
performance under this Agreement to the extent that the indemnifying Party is liable or
responsible for said third-party claims , losses, damages, or court actions. Further, CTC
hereby indemnifies USWC from any claims made against it by a CTC's end user on
account of CTC's end user s use or attempted use of the Service, regardless of thecause thereof excepting only, the intentional, malicious misconduct of USWC.
Whenever any claim shall arise for indemnification hereunder, the Party entitled to
indemnification shall promptly notify the other Party of the claim and, when known , the
facts constituting the basis for such claim. In the event that one Party to this Agreement
disputes the other Party right to indemnification hereunder, the Party disputing
indemnification shall promptly notify the other Party of the factual basis for disputing
indemnification. Indemnification shall include, but is not limited to, costs and attorney
fees.
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11.LAWFULNESS OF AGREEMENT
11.1. This Agreement and the Parties ' actions under this Agreement shall comply with all
applicable federal state, and local laws, rules, regulations, court orders, and
governmental agency orders. This Agreement shall only be effective when mandatory
regulatory filing requirements are met, if applicable. If a court or a governmental agency
with proper jurisdiction determines that this Agreement, or a provision of this Agreement
is unlawful , this Agreement, or that provision of this Agreement shall terminate on
written notice to GTC to that effect.
11.2. If a provision of this Agreement is so terminated, the Parties will negotiate in good faith
for replacement language. If replacement language cannot be agreed upon , either
Party may terminate this Agreement.
12.GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the
state in which Services are delivered to the end user.
13.DISPUTE RESOLUTION
Any claim, controversy or dispute between the Parties shall be resolved by arbitration in
accordance with the then current rules of the American Arbitration Association. The
arbitration shall be conducted by a single arbitrator engaged in the practice of law and
knowledgeable about telecommunications. The arbitrator s decision and award shall be
final and binding and may be entered in any court with jurisdiction.
14.DEFAULT
If a Party defaults in the performance of any substantial obligation herein , and such
default continues. uncured and uncorrected, for thirty (30) days after written notice to
cure or correct such default, then the non-defaulting Party may immediately terminate
this Agreement. Subject to Section 9 (Limitation of Liability) above, the non-defaulting
Party may also pursue other permitted remedies by arbitration as set forth above.
15.SUCCESSORS, ASSIGNMENT
This Agreement binds the Parties, their successors, and their assigns. Either Party may
assign its rights and delegate its duties under this Agreement with the express, written
permission of the other Party I which permission shall not unreasonably be withheld;
provided , however. that USWC may assign its rights and delegate its duties under this
Agreement to its parent, its subsidiaries, or its affiliates without prior, written permission.
16.AMENDMENTS TO AGREEMENT
The Parties may by mutual agreement and execution of a written amendment to this
Agreement amend , modify, or add to the provisions of this Agreement.
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17.NOTIC ES
All notices required or appropriate in connection with this Agreement shall be in writing
and shall be deemed effective and given upon deposit in the United States Mail, postage
pre-paid . addressed as follows:
CTC
Rick Wiggins
130 Superior
Cambridge, 10 83610
USWC
Director Interconnection Compliance
1801 California Street, Suite 2410
Denver, Colorado 80202
Copy to:
Givens Pursley
Mr. Michael C. Creamer
277 North 6th Street
Boise, Idaho 83701
Copy to:
U S WEST Law Department
General Counsel-Interconnection
1801 California, Suite 5100
Denver, Colorado 80202
18.ENTIRE AGREEMENT
This Agreement, including all exhibits and properly executed amendments, is the entire
Agreement between the Parties.
IN WITNESS WHEREOF , each of the Parties has caused this Agreement to be duly executed
for and on its behalf on the day and year indicated below:
CTC Telecom, Inc.
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EXHIBIT A
CHARGES
Idaho
OPTION A: Price Per Message
Operator Handled Calling Card $ 0.46
Machine Handled Call $ 0.
Station Call $ 0.
Person Call $ 2.
Connect to Directory Assistance $ 0.
Busy Line Verify $ 0.
Busy Line Interrupt $ 0.
Operator Assistance $ 0.
For each completed calling card call that
was dialed 0+ where the operator entered
the calling card number.
For each completed call that was dialed 0+
where the end user entered the required
information. such as calling card number.
For each completed station call. including
station sent paid, collect, 3rd number
special billing or 0- calling card call.
For each completed person-to-person call
regardless of the billing used by the end
user.
For each operator placed call to directory
assistance.
For each call where the operator
determines that conversation exists on a
line.
For each call where the operator interrupts
conversation on a busy line and requests
release of the line.
For each local call completed or not, that
does not potentially generate an operator
surcharge. These calls include, but are not
limited to: calls given the ODD rate
because of transmission problems; calls
where the operator has determined there
should be no charge, such as Busy Line
Verify attempts where conversation was not
found on the line; calls where the end user
requests information from the operator, and
no attempt is made to complete a call; calls
for quote service.
Completed call" as used in this Agreement shall be conclusively determined to mean that "end user makes contact
with the location, telephone number, person , or extension designated by the end user
A completed call shall be computed. calculated and recorded in accordance with the methods and practices of
USWC and the operating capacity and ability of USWC's measuring equipment.
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EXH I BIT
(page 2)
CHARGES
Idaho
OPTION B: Price Per Work Second and Computer Handled Calls
Operator Handled $ 0.0181
Machine Handled $ 0.
Per operator work second for all operator
assisted Services and functions of Services.
Per call for all Services which are handled
solely by computers and USWC equipment.
GTC is charged per work second for all calls originating from its end user(s) and facilities that go to USWC's operator
facilities for handling. Work second charging begins when the USWC operator position connects with GTC's end
user and terminates when the connection between the USWC operator position and CTC's end user is terminated.
Calls without live operator intervention are computer (machine) handled and include. but are not limited to, credit
card calls where the end user enters the calling card number, calls originating from coin telephones where the
computer requests deposit of coins, additional end user key actions, recording of end user voice, etc.
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