20041119Final Order No 29633.pdf

Office of the Secretary
Service Date
November 19, 2004
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION
OF QWEST CORPORATION AND
MCIMETRO ACCESS TRANSMISSION
SERVICES LLC'S MASTER SERVICE
AGREEMENT FILING
CASE NO. QWE- T -04-
ORDER NO. 29633
On August 2, 2004, MCImetro Access Transmission Services, LLC (MCImetro) filed
a Master Services Agreement (MSA) as well as a related Amendment to Interconnection
Agreement between MCImetro and Qwest Corporation (Qwest) with the Commission seeking its
review and approval pursuant to 47 U.C. ~ 252. The MSA is a commercial agreement where
Qwest provides MCImetro with its Qwest Platform Plus (QPP) services, and covers the purchase
and use of certain combinations of network elements: local switching; shared transport; loop;
etc. that were commonly known as Unbundled Network Element Platform (UNE-P) and the
subject of previous interconnection agreements. The MSA states, given the "regulatory
uncertainty in light of the DC Circuit Court's decision in USTA v. FCC 359 F.3d 554 (March 2
2004) . . . with respect to the future existence, scope, and nature of Qwest's obligation to provide
such UNE-P arrangements under the Communications Act " that theMSA is being filed with
corresponding interconnection agreement amendments "to create a stable arrangement for the
continued availability to MCI from Qwest of services. . ." Master Services Agreement at 2.
The Commission approved the parties' Amendment to their Interconnection
Agreement in Order No. 29580. The Commission issued a Notice of Filing, Notice of Modified
Procedure, and Notice of Comment/Protest Deadline regarding the MSA in Order No. 29596.
Comments were sought from any interested party regarding whether such an agreement, the
MSA, is subject to the requirements of 47 U.C. ~~ 251 , 252 et. seq. The Commission received
comments from Qwest, MCImetro, AT&T Communications of the Mountain States (AT&T),
and the Commission Staff. Based upon the comments received, the applicable law, and the
unique facts and circumstances comprising the record in this case, the Commission by this Order
accepts the MSA for filing, and will await a ruling and direction from the FCC regarding
whether such agreements are subject to the requirements of 47 U.C. ~~ 251 , 252 et. seq.
ORDER NO. 29633
LEGAL BACKGROUND
In an effort to promote the development of competitive markets in the
telecommunications industry, Congress passed the federal Telecommunications Act of 1996 (the
Act). Among the many specific duties imposed upon the incumbent local exchange carriers
(ILECs) by the Act are the duties to provide for interconnection with any requesting competitive
local exchange carrier s (CLECs) network and to provide nondiscriminatory access to network
elements on an unbundled basis. 47 U.C. ~ 251(2), (3). Under the Act, interconnection
agreements must be submitted to State Commissions for approval. 47 U.C. ~ 252(e)(l). The
Commission may reject an agreement adopted by negotiations only ifit finds that the agreement:
(1) discriminates against a telecommunications carrier not a party to the agreement; or (2)
implementation of the agreement is not consistent with the public interest convenience and
necessity. 47 U.C. ~ 252(e)(2)(A).
The Act left to the FCC the choice of elements to be "unbundled" pursuant to an
impairment" determination as to the CLEC.Federal Courts have invalidated certain
impairment and unbundling determinations by the FCC. On August 21 2003, the FCC issued its
Triennial Review Order (TRO), in which it declined to require the high frequency portion of the
loop be made available as an unbundled network element. In the Matter of Review of the Section
251 Unbundling Obligations of Incumbent Local Exchange Carriers CC Docket No. 01-338.
The United States Court of Appeals for the District of Columbia Circuit in an appeal from the
FCC's TRO vacated the FCC'determination that CLECs were impaired without
interconnection access to mass market switches and high-capacity dedicated transport facilities
while upholding the elimination of mandatory line sharing. United States Telecom Association v.
FCC 359 F.3d 554 (D.Cir. 2004)("USTA 11,,
On April 23 , 2002, Qwest filed a petition for a declaratory ruling on the scope of the
mandatory filing requirement set forth in Section 25 2( a)( 1) of the Act. Qwest Communications
International, Inc. Petition for Declaratory Ruling on the Scope of the Duty to File and Obtain
Prior Approval of Negotiated Contractual Arrangements Under Section 252 (a) (1),
Memorandum Opinion and Order, FCC 02-276, WC Docket 02-, ~ 1. (Qwest Declaratory
Ruling). The FCC declined to establish an exhaustive, all-encompassing "interconnection
agreement" standard. Id. at ~ 10. The FCC stated that the determination as to whether a
Petitions for a grant of writ of certiorari from the United States Supreme Court are pending.
ORDER NO. 29633
particular agreement is required to be filed as an "interconnection agreement" is left to the states
to make on a case-by-case basis. Id. The FCC further stated:
we find that an agreement that creates an ongoing obligation pertaining to
resale, number portability, dialing parity, access to rights-of-way, reciprocal
compensation, interconnection, unbundled network elements, or collocation is
an interconnection agreement that must be filed pursuant to section 252(a)(I).
Qwest Declaratory Ruling at ~ 8. Footnote 26 to that passage further states:
We therefore disagree with the parties that advocate the filing of all
agreements between an incumbent LEC and a requesting carrier. Instead, we
find that only those agreements that contain an ongoing obligation relating to
section 251(b) or (c) must be filed under 252(a)(I). Similarly, we decline
Touch America s suggestion to require Qwest to file with us, under section
211 , all agreements with competitive LEC's entered into as "settlements of
disputes" and publish those terms as "generally available" terms for all
competitive LECs.
Id. at n. 26 (citations omitted).
On August 20, 2004, the FCC requested comments on this issue in its Order and
Notice of Proposed Rulemaking in response to the Court of Appeal's decision vacating the
FCC'Triennial Review Order. The FCC "incorporate(dJ three petitions regarding incumbent
LEC obligations to file commercial agreements, under section 252 of the Act, governing access
to network elements for which there is no section 251(c)(3) unbundling obligation.
. .
" in its
latest rulemaking. Unbundled Access to Network Elements WC Docket No. 04-313; Review of
Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers CC Docket No. 01-
338, Order and Notice of Proposed Rulemaking, FCC 04-179 (reI. Aug. 20, 2004) at ~ 13; AT&T
Comments at 13-14.
SUMMARY OF COMMENTS
The Commission received comments from Qwest MCImetro AT&T
Communications of the Mountain States (AT&T), and the Commission Staff.Qwest'
comments opposed the Commission s review and approval of the MSA contending it was not an
interconnection agreement and was beyond the jurisdiction of the Commission. AT&T, MCI
and the Commission Staff filed comments advocating the position that the MSA is subject to the
filing and approval requirements of the Act pursuant to 47 U.C. ~~ 252 and 271.
ORDER NO. 29633
A. Qwest Corporation
Qwest opposes the Commission s review and approval of the MSA on the basis that
it is not an interconnection agreement, but a commercial agreement beyond the jurisdiction of the
Commission. Qwest also contends the Commission is preempted from reviewing the MSA.
Qwest argues that as a result of the D.C. Circuit Court's decision in USTA II it is no
longer required to provide the network elements (switching and shared transport) that are the
subject of the QPP MSA under 47 U.C. ~ 251. Qwest argues that it is therefore not required to
file such an agreement with State Commissions and the State Commissions lack authority under
Section 252 to review and approve the agreement. Qwest argues that USTA II when read
together with the language from the Qwest Declaratory Ruling establishes that the MSA is not
subject to either Section 251 or 252 and is therefore not subject to review and approval by the
Commission because the MSA does not create any terms or conditions for services that Qwest
must provide under Sections 251 (b) and (c), and therefore is not an interconnection agreement.
Qwest further argues that because the MSA is not subject to the provisions of
Section 251 or 252, it falls within exclusive federal jurisdiction that preempts State Commission
action. Qwest Comments at ~~ 14-21. Qwest argues that the statutory federal filing requirements
relating to the filing of contracts for interconnection services not covered by Sections 251 (b) or
(c) (i., 47 U.C. ~ 271) create a "federal regulatory regime" that would preempt State
Commission action.
B. AT&T, MCI, and Commission Staff
AT&T, MCI, and the Commission Staff each filed comments advocating that the
MSA must be filed with the State Commission for approval pursuant to 47 U.C. ~ 252 and 47
C. ~ 271 because: 1) it is an interconnection agreement pursuant to Section 252; 2) the State
Commission is obligated to ensure that the agreement is not discriminatory; and 3) the state must
ensure that Qwest continues to meet the essential conditions of Section 271. Commission Staff
was able to review the comments filed by AT&T prior to filing its own comments and stated
general agreement with AT&T's comments.
AT&T argues that the MSA falls squarely within the plain language of the statute as
well as the FCC's direction from the Qwest Declaratory Ruling. Section 252(e)(1) is clear on its
face requiring filing with and approval by the State Commission of any interconnection
agreement, and the MSA along with the Amended Interconnection Agreement establishes
ORDER NO. 29633
ongoing obligations pertaining to
. .
. interconnection.Qwest Declaratory Ruling at ~ 10;
AT&T Comments at 3.
MCI refers to a more recent FCC Order that reiterates the "ongoing obligation
language from the Qwest Declaratory Ruling without limiting this direction to only those
agreements that contain an ongoing obligation relating to Section 251 (b) or (c) as Qwest argues
it did in footnote 26 to the Qwest Declaratory Ruling. In the Matter of Qwest Corporation
Apparent Liability for Forfeiture File No. EB-03-lli-0263, NAL Account No. 200432080022
FRM No. 0001-6056-, ~ 22; MCImetro Comments at 2-3. MCI also cites to the FCC's August
, 2004 Order requesting comments upon this issue in its ongoing rulemaking, (as did AT&T)
and a concurring statement by FCC Commissioner Abernathy, for the proposition that the FCC
has not settled the issue of whether commercially negotiated agreements for access to network
elements that are not required to be unbundled under Section 251(c)(3) should fall within Section
252. Id. at 3-
Lastly, AT&T argues that under Section 271 , Qwest's authority to provide in-region
long distance service in Idaho is conditioned on Qwest offering competitive checklist items
pursuant to "binding agreements that have been approved under section 252
. . .
Id. AT&T
cites language from a Section 271 application case in which the FCC stated that a Bell Operating
Company is only "providing" a checklist item if it has a "concrete and specific legal obligation to
furnish the item upon request pursuant to state-approved interconnection agreements that set
forth prices and other terms and conditions for each checklist item.Id. at 9-10. Commission
Staff agreed that the MSA must be filed with the Commission pursuant to 47 U.C. ~ 271 and
272 as the State Commissions are charged not only with an initial decision regarding compliance
but also the subsequent monitoring and auditing of such compliance in order for Qwest to remain
in the long distance market.
Additionally, Staff stated that should the Commission wish to consider approval of
the MSA as an interconnection agreement, Staff would recommend approval as they reviewed
the MSA and did not find any terms or conditions to be discriminatory or contrary to public
interest.
DISCUSSION
Based upon the comments received, the applicable law, and the unique facts and
circumstances comprising the record in this case, the Commission by this Order accepts the
ORDER NO. 29633
MSA for filing, and will await a ruling and direction from the FCC regarding whether such
agreements are subject to the requirements of 47 U.C. ~~ 251 , 252 et. seq.
Although the Commission appreciates the depth of the comments, under the facts of
this particular case it is not necessary for us to determine whether approval of the MSA as an
interconnection agreement is required under the Act. Qwest has published this agreement on its
website, and has made the terms and conditions of the agreement available to any
telecommunications carrier assuming the same obligations as MCI. Qwest Comments at 3. In
fact, the Commission has received two additional filings of this particular agreement since the
commencement of this action: Case No. QWE- T -04-, Northstar Telecommunications, Inc.
and Case No. QWE- T -04-, Z- Tel Communications, Inc. Additionally, Commission Staff has
reviewed the MSA and did not find any terms or conditions to be discriminatory or contrary to
public interest, which is the extent of the Commission s review of interconnection agreements
under the Act. Qwest has, for all practical purposes, done all that would be required of it with
regard to the MSA if considered an interconnection agreement under the Act.
The FCC has taken up this issue in its latest rulemaking. Guidance from the FCC
should be forthcoming regarding an incumbent LEC's obligation to file commercial agreements
under Section 252 of the Act and addressing access to network elements for which there is no
Section 251(c)(3) unbundling obligation. Unbundled Access to Network Elements WC Docket
No. 04-313; Review of Section 251 Unbundling Obligations of Incumbent Local Exchange
Carriers CC Docket No. 01-338, Order and Notice of Proposed Rulemaking, FCC 04-179 (reI.
Aug. 20, 2004) at ~ 13; AT&T Comments at 13-14. The Commission finds it to be prudent to
await further guidance from the FCC, while accepting this MSA for filing.
ORDER
IT IS HEREBY ORDERED that the Qwest Platform Plus Master Services
Agreement between MCImetro Access Transmission Services, LLC and Qwest Corporation is
acknowledged and accepted by the Commission for filing.
THIS IS A FINAL ORDER. Any person interested in this Order (or in issues finally
decided by this Order) may petition for reconsideration within twenty-one (21) days of the
service date of this Order. Within seven (7) days after any person has petitioned for
reconsideration, any other person may cross-petition for reconsideration. See Idaho Code ~~ 61-
626 and 62-619.
ORDER NO. 29633
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this /1-n.
day of November 2004.
MARSHA H. SMITH, COMMISSIONER
ATTEST:
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ORDER NO. 29633