20041129Application.pdf

:~L:C:E!\lED OR\G\NAL
Jim Jones (ISB #1136)
JIM JONES & ASSOCIATES
O. Box 7140
Boise, Idaho 83707
Telephone: [phone]
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Attorney for Petitioners
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE JOINT PETITION OF
ROBERT RYDER, d/b/a RADIO PAGING SERVICE
and JOSEPH B. MCNEAL, d/b/a P AGEDA T A
FOR ARBITRATION OF A INTERCONNECTION DISPUTE.
(/)PE- T- 0 tj- g 1
PETITION FOR
ARBITRATION
Petitioners, Robert Ryder, d/b/a Radio Paging Service, and Joseph B. McNeal, d/b/a
PageData, hereby petition the Idaho Public Utilities Commission ("Commission ) for
arbitration of a dispute between Petitioners and Qwest Communications, Inc. ("Qwest"
arising under interconnection agreements heretofore approved by the Commission.
Petitioners show the Commission, as follows:
Petitioners are both telecommunication carriers operating Type One paging
services. Petitioners interconnect with Qwest and have done so since prior to 1999.
On or about February 19 , 1999, Robert Ryder entered into a Type One Paging
Agreement (Agreement No. CDS-980622-0027) with Qwest's predecessor, U.S. West
Communications, Inc., and the same was approved by the Commission on or about May 13
1999. A true and correct excerpt from that agreement is attached and incorporated as Exhibit
A. On or about June 8, 1999, Joseph B. McNeal entered into a Type One Paging Agreement
PETITION FOR ARBITRATION -
(Agreement No. CDS-990518-0085) with Qwest's predecessor, U.S. West Communications
Inc., and said agreement was approved by the Commission on or about September 10, 1999.
A true and correct excerpt from that agreement is attached and incorporated as Exhibit B.
Both of the Petitioners entered into their respective interconnection
agreements with U.S. West/Qwest under duress or business compulsion. Petitioners had
contended that the facilities and services to be provided pursuant to the agreements were
required to be provided without charge under federal telecommunications laws and
regulations, while Qwest contended otherwise. Qwest refused to reduce its charges to comply
with federal law unless the Petitioners entered into said interconnection agreements. Both
agreements provided that charges would be reduced by at least one-half. In order to get the
benefit of the reduced charges, the Petitioners entered into said agreements. Both of the
agreements allowed Qwest to charge for transit traffic, i.e. traffic originating on systems
other than Qwest/U.S. West. Petitioners both contended that they could not be charged or
held liable for transit traffic charges.
On August 2, 2004, the Commission determined in its Order No. 29555 that
Qwest was required to credit or refund back to Petitioners any and all sums charged for
transit traffic for the period November 1 , 1996, until the time Petitioners entered into their
respective interconnection agreements.An excerpt from that order is attached and
incorporated as Exhibit C. Both of the agreements contain a change of law provision that
incorporates the Commission s ruling in Order No. 29555.
Prior to the entry of Order No. 29555, Petitioners had filed suit in the U.
District Court for the District of Idaho, seeking recovery of the transit traffic charges paid by
Petitioners pursuant to their respective interconnection agreements. Qwest filed a motion to
PETITION FOR ARBITRATION - 2
dismiss, claiming that the question of whether Qwest could charge for transit traffic pursuant
to the interconnection agreements was required to be resolved by arbitration. An excerpt
from Qwest's brief in this regard is attached and incorporated as Exhibit D. The parties
subsequently agreed to dismiss the federal action, without prejudice, and stipulated to entry
of a dismissal order wherein the parties waived limitations defenses.copy of the
subsequent court order is attached and incorporated as Exhibit E.
Petitioners have repeatedly requested that Qwest either refund the transit
traffic charges paid pursuant to the interconnection agreements or submit the matter to
arbitration. Copies of a number of such requests are attached as Exhibit E. Qwest has failed
and refused to do either. Petitioners are entitled to arbitration of the issue of their liability
(and entitlement to refund) for transit traffic charges under their interconnection
agreements.
WHEREFORE Petitioners pray that the Commission arbitrate the issue of
Petitioners ' liability for, and entitlement to a refund of, transit traffic Gharges paid under their
respective interconnection agreements.
DATED this 24th day of November, 2004.
PETITION FOR ARBITRATION - 3
CERTIFICATE OF SERVICE
HEREBY CERTIFY.that on this 24th day of November, 2004, I caused to be
served a true and correct copies of the foregoing PETITION FOR ARBITRATION by
depositing the same in the United States mail, postage prepaid, in envelopes addressed to the
following:
WILLIAM 1. BATT
Batt & Fisher
O. Box 1308
Boise, ID 83701
DON HOWELL
Idaho Public Utilities Commission
472 West Washington
Boise 370
PETITION FOR ARBITRATION - 4
TYPE 1 PAGING
AGREEMENT
BETWEEN
U S WEST Communications, Inc.
AND
Robert S. Ryder d.a. Radio Paging Service
Agreement Number
CDS-980622-0027
for the State of Idaho
:is
TYPE 1 PAG;NG AGREEMENT
This Type 1 Paging Agreement, is between Robert S. Ryder d.a. Radio Paging
Service ("Paging Provider") an Individual Proprietorship, and U S WEST Communications, Inc.
USWC"), a Colorado Corporation.
Paging Provider is licensed to provide paging services by the Federal Communications
Commission ("FCC"). 80th USWC and Paging Provider are engaged in providing
telecommunications and other services and have agreed to connect their facilities and
exchange traffic; therefore , each party covenants and agrees as follows:
RECITALS1. The Parties enter into this Agreement without prejudice to any positions they
have taken previously, or may take in the future in any legislative, regulatory, or
other public forum addressing any matters, inCluding matters related to the types
of arrangements prescribed by this Agreement. It will be submitted to the Idaho
Public Utilities'Commission.
The Parties have agreed to certain provisions in this Agreement, based, in large
part, on the existing state of the law, rules, regulations and interpretations'
thereof, as of the date hereof (the "Existing Rules
).
To the extent that certain of
the Existing Rules are changed and modified , and it reasonably appears that the
Parties would have negotiated and agreed to different term(s), conditions(s), or
covenant(s) than as contained herein had such change or modification been in
existence before ex~cution hereof, then this Agreement shall be amended to
reflect such different term(s), condition(s), orcovenant(s). Where the Parties fail
to agree upon such an amendment, it shall be resolved in accordance with the
Dispute Resolution provision of this Agreement.
SCOPE OF AGREEMENT1. Unless otherwise provided in this Agreement, the Parties will perform all of their
obligations hereunder, to the extent provided in the Appendices attached hereto.
The Agreement includes all accompanying appendices.
In the performance of their obligations under this Agreem~nt, the Parties shall
act in good faith and consistently with the intent of the Act. Where notice
approval or similar action by a Party is permitted or required by any provision of
this Agreement, (including, without limitation, the obligation of the Parties to
further negotiate the resolution of new or open issues under this' Agreement)
such action shall not be unreasonably delayed, withheld or conditioned.
Interchange of Type 1 Traffic
1. USWC will originate and terminate paging traffic and deliver it to the
Paging Provider's facility in the service area(s) set forth in Appendix C as
herein provided.
2 ,This Agreement is for Type 1 traffic interchange for licensed, narrow-
band radio carriers only. All other interconnections are covered by
6/22/98 / Type 1 Paging Agreement / Robert S. Ryder d.a. Radio Paging Service
Agreement Number- CDS-980622-0027/ swd
17.16. Dispute Resolutaon
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 conducted by a single
arbitrator engaged in the practice of law, under the then current rules of the
American Arbitration Association ("AAA"
).
The F~deral Arbitration Act, 9 U.
Secs. 1-, not state law, shall govern the arbitrability of all Disputes. The
arbitrator shall not have authority to award punitive damages. All expedited
procedures prescribed by the AAA rules shall apply. 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 in Denver
Colorado. Nothing in this Section shall be construed to waive or limit either
Party s right to seek relief from the Commission or the Federal Communications
Commission as provided by state or federal law.
No Dispute, regardless of the form of action
, ~
arising out of this Agreement, may
be brought by either Party more than two (2) years after the cause of action
accrues.
17.17. Controlling Law
This Agreement was negotiated by the Parties in accordance with the terms of
the Act and the laws of the state where service is provided hereunder. It shall be
interpreted solely in accordance with the terms of the Act and the applicable
state law in the state where the service is provided.
17.18. Joint Work Product
This Agreement is the joint work product of the Parties and has been negotiated
by the Parties and their respective counsel and shall be fairly interpreted in
accordance with its terms and , in the event of any ambiguities, no inferences
shall be drawn against either Party.
17.19. Responsibility for Environmental Contamination
Neither Party shall be liable to the other for any costs whatsoever resulting from
the presence or release of any environmental hazard that such Party did not
introduce to the affected work location. Both Parties shall defend and hold
harmless the other, its officers, directors and employees from and against any
losses, damages, claims, demands, suits, liabilitIes, fines penalties and
expenses (including reasonable attorneys' fees) that arise out of or' result from (i)
any environmental hazard that the indemnifying party, its contractors or agents
introduce to the work locations or (ii) the presence or release of any
environmental hazard for which the indemnifying party is responsible underapplicable law.
6/22198 / Type 1 Paging Agreement / Robert S. Ryder d.Radio Paging Service
Agreement Number- CDS-980622-0027 / swd
v.::/"
TYPE 1 PAGING'
AGREEMENT
BETWEEN
, -
U S WEST Communications, Inc.
AND
Joseph B. McNeal d.a. Page Data
Agreement Number
cDS-990518-0085
Idaho
...
TYPE 1 PAGING AGREEMENT
This Type 1 Paging Agreement, is between Joseph B. McNeal d.a. Page Data
("Paging Provider") a proprietorship, and, U S WEST Communications, Inc. ("USWCII), a
Colorado corporation.
Paging Provider is licensed to provide paging services by the Federal Communications
Commission ("FCC"). Both USWC and Paging Provider are engaged in providing
telecommunications and other services and have agreed. to connect their facilities and
exchange traffic; therefore, each party covenants and agrees as follows:
RECITALS
1 .1. The...Parties enter into this Agreement without prejudice to any positions they
have taken previously, or may take in the future in any legislative, regulatory, or
other public forum addressing any matters, jncluding matters related to the types
of arrangements prescribed by this Agreement It ~iII be submitted to the Idaho
Public Utilities 'Commission.
The Parties have agreed to certain provisions in this Agreement, based, In large
part, on the existing state of the law, rules , regulations and interpretations
thereof, as of the date hereof (the "Existing Rules
).
To the extent that certain of
the Existing Rules are changed and modified, and it reasonably appears that the
Parties would have negotiated and agreed to different term(s), conditions(s), or
covenant(s) than as contained herein had such change or modification been in
existence before execution hereof, then this Agreement shall be amended to
reflect such different term(s), condition(s), or covenant(s). Where the Parties fail
to agree upon such an amendment, it shall be resolved in accordance with theDispute Resolution provision of this Agreement
SCOPE OF AGREEMENT 1. Unless otherwise provided in this Agreement, the Parties will perform all of their
obligations hereunder, to the extent provided in the Appendices attached hereto.
The Agreement includes' aU accompanying, appendices.
I n the performance of their obligations under this Agreement, the Parties shall
act in good faith- and consistently with the intent of the Act Where notice
approval or similar action by a Party is permitted or required by any provision of
this Agreement, (including, without limitation, the obligation of the Parties
, further negotiate the resolution of new or open issues under this Agreement)
such action shall not be unreasonably delayed, withheld or conditioned.
Interchange of Type 1 Traffic
3. 1. USWC will originate and terminate paging traffic and deliver it to the
Paging Provider's facility in the service area(s) set forth in Appendix C as
herein provided.
This Agreement is for Type 1 traffic interchange for licensed, narrow-
band radio carriers only. All other interconnections are covered by
May 18, 1999/Type 1 PagingIPageDataJldahofT1 P-ID.doc
CDS-990518-QO85/cam/c
, ,J"
17.16. Dispute Resolution
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 conducted by a single
arbitrator engaged in the practice of law under the then current rules of the
American Arbitration Association ("AAA"
).
The Federal Arbitration Act, 9 U.
Sees. 1-, not state law, shall govern the arbitrability of all Disputes. The
arbitrator shall not have authority to award punitive damages. All expedited
procedures prescribed by the AAA rules shall apply. 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 in Denver
Colorado. Nothing in this Section shall be -construed to waive or limit either
Party's right to seek relief from the Commission or the Federal Communications
Commission as provided by state or federal law.
No Dispute, regardless of the form of action, arising, out of this Agreement, may
be brought by either Party more than two (2) years after the cause of action
accrues.
17.17. Controlling Law
This Agreement was negotiated by the Parties in accordance with the terms of
the Act and the laws of the state where service is provided hereunder. It shall be
interpreted solely in accordance with the terms of the Act and the applicable
state law in the state where the service is provided.
17.18. Joint Work Product
This Agreement is the joint work product of the Parties and has been negotiated
by the Parties and their respective counsel and shall be fairly interpreted in
accordance with its terms and, in the event of any ambiguities, no inferences
shall be drawn against either Party.
17 .19. Responsibility for t=nvironmental Contamination
Neither Party shall be liable to the other for any costs whatsoever resulting from
the presence or release of any environmental hazard that. such Party did not
introduce to the affected work location. 80th Parties shall defend and hold
harmless the other, its officers, directors and employees from and against any
losses, damages, claims, demands, suits, liabilities, fines , penalties and
expenses (including reasonable attorneys' fees) that arise out of or result from (i)
any environmental hazard that the indemnifying party, its contractors or agents
introduce to ' the work locations or (ii)' the presence or release of any
environmental hazard for which the indemnifying party is responsible under
applicable law.
17.20. Notices
Any notices required by or concerning this Agreement shall be sent to the Partiesat the addresses shown below:
May 18 , 1999IType 1 Paging/PageData/idahofT1 P-ID.doc
CDS-990518-QO85/camlc
Office of the Secretarv
Service Date
August 2, 2004
BEFORE TH O P1JBLIC IjTTI 1 IES CONIlVllSSION
ROBERT RYDER DBA RADIO PAGING
SER\1:CE, JOSEPH B. McNEAL DBA
AGEDAT A AND ThiERP AGE OF IDAHO,
AND TEL-CAR, INC.
P etitioners/ Appellants,
IDAHO PUBLIC UTILITIES CO:MMISSION,
Respondent on Appeal,
and
QWEST CORPORATION,
, RespondentJRespondent on Appeal.
SUPREME CO DR
DOCKET NO. 29175
UC CASE NO. USW-99-
ORDER NO. 29555
On February ,, 2004;the Parties in this appeal filed a Stipulated Motion with the
Idaho Supreme Court to' suspend the appeal and 'temporarily remand this matter back to the
Public Utilities Commission. At that time, the Parties mamtainedthere was good cause to
suspend the appeal, primarily so they could consider a recent decision issued by the United
States Court of Appeals for the District of Columbia Circuit. In that decision the Circuit Court
vacated orders of the Federal Comhlunications Commission (FCC) that the Idaho Commission
had relied upon when it issued the underlyillg orders in this appeal. The Parties asserted in their,
Stipulated Motion that remanding the matter would allow: (1) the Commission to reconsider its
orders in light of the recent Circuit Court opinion; (2) the FCC' to address. the two
telecommunication issues on remand' from the Circuit Court; and (3) the Parties another
opportunity to settle ,the appeal. , On March 8, 2004, the Court suspended the appeal and
remanded the matter back to the Commission.
Following the Court's remand, negotiations to settle or narrow the issues on appeal
were unsuccessful. In addition, the FCC has not issued any orders addressing the two
telecommunications issues discussed in the Circuit Court's opinion. Given this state of events
ORDER NO. 29555 , U:is
time. The FCC has repeatedly ruled that LECs may charge pa~...ng companies for
interconnection facilities to the extent that those facilities cany traffic.Id. (footnote omitted).
Qwest argued that until the Circuit Court issued its Mountain Communications opinion, the FCC
had repeated and consistently held that LECs may charge paging carriers for transit traffic. I
Finally, Qwest disclosed it is working to develop a "records product" that if successful, would
make transit calling information available for purchase by paging companies. Assuming that the
product can be developed, Qwest intends to sell the service "to interconnecting carriers that wish
to purchase it." Id. at 8. Thus, such a service would not be ma~e avai~able to pagers for free. If
the Pagers want to seek reimbursement from the originating camer then the Pagers can purchas.e
the "records service.
As directed by the Commission, Qwest calculated the amount of transit traffic at
issue for each of the three .Pagers with interest through July 1 , 2004. The calculated refund
credits for each carrier would be: Radio Paging - $15 311; Tel-Car - $15 362; and PageData
(including InterPage) - $35 701.
2. The Pagers The Pagers insisted they are entitled to a full refund for transit traf'fj.c.
They argued it would be inequitable for Qwest to charge the Pagers for transit traffic, while at
t4e same time not providing the Pagers with the necessary third-party information. Pagers Brief
at 13. Just as Qwest offered at the Circuit Court's oral argument to provide the necessary
" information to Mountain, the Pagers 'here assert they are entitled to equal treatment and to
receive the calling data. Mountain Co7nlnunications 355 F.3d at 649. The Pagers insisted that it
would be discriminatory for Qwest to provide the calling information to Mountain b~t not
provide similar information to the Pagers. 47 V.C. 9251(c)(2)(D).
Commission Findings: The issue of transit traffic was vigoro~ly contested in this
case. As the Circuit Court noted, Qwest incurs costs for switching and routing calls originating
with other carriers, and transported over Qwest's network to paging carriers. In its Mountain
decision, the FCC allowed Qwest to charge for transit traffic "but indicated that (the Pagers)
could seek reimbursement from the originating carrier for whatever charges it paid to Qwest.
Id. at 649. In other words, Qwest has a choice: it can either charge the Pagers and provide
calling information so that they may seek reimbursement; 'or it could charge the originating
carrier. Id. Although the Circuit Court never reached the merits of this dilemma, it is plain in
11 In a footnote, Qwest lists most ifnot all the FCC Orders cited by the Commission in its prior Orders.
ORDER NO. 29555
the Court~ s analysis and ours that Qvlest cannot have it both ways. Qwest's statement t.\at the
transit traffic calling data "does not exist " provides only one choice.
QY~lesf s arguments on why the Pagers should not receive refunds for transit traffic
are unpersuasive. We agree with the Pagers that it is inequitable to offer the calling data to
Mountain but not to other similarly situated carriers. On remand, we fmd it reasonable for Qwest
to provide either refunds or the calling data. Because Qwest has no data to give, we are left willi
no choice but to order Qwest to refund the transit traffic charges to the Pagers. Qwest's reliance
upon the FCC orders is unavailing. While we recognize that~e FCC and our prior Order both
validated" Qwest charging the Pagers for transit traffic, even the FCC recognized in Mountain
that the Pagers could seek reimbursement from the originapng carrier provided Mountain was
given the necessary data tojdentify such carriers. Mountain Communications 355 F.3d at 649
citing Mountain Colnmunications II 17 FCC Rcd at 15137 n. 13. We infer this lack of data
prompted Qwest to develop a service to record the transit data.
CALCULATIONS OF THE REFUNDS
Havirig determined that the Pagers are due additional refunds/credits for wide area
calling and transit traffic, we turn to the calculation of these additional refunds. Order No. 29491
~ected Qwest to prepare exhibit(s) showing the amount of transit traffic charged to each pager
and the amount of charges for wide area calling (if any). These calculations were also to include
appropriate interest calculated up to July 1 , 2004. Order No. 29491 at 7-8. Once Qwest filed its
calculations
, "
then the ~agers will have an opportunity to respond to the questions, and reply to
Qwest's information/calculations.Id. at 8.
Pursuant to the 'Commission s directive Qwest calculated ,t:he ,refund amounts. at
issue fo~ wide area calling and transit traffic. Starting with the refund credits issued each pager
in November 2002 pursuant to Reconsideration Order No. 29140 (R. at 916), Qwest calculated
the amounts at issue as shown in the table below.
, The Pagers maintain~d that'they "are entitled to a refund of all sums that they paid to
Qwest during the time periods relevant to this proceeding." Pagers Briefat 3 (emphasis added).
In addition, PageData now seeks a larger refund than it initially requested at the evidentiary
hearing. Although Radio Paging did not seek any refunds for wide area calling, it asserted that it
was due additional credit for transit traffic. Id. at 16. Radio Paging requested a refund totaling
$57 309.16 (without interest).
ORDER NO. 29555
IT IS F1JP~THER ORDERED that Qwest issue the respective additional billing
credits and/or refunds to PageData and Radio Paging no later than 21 days from the service date
of this Order.
IT IS FCJRTHER ORDERED that Qwest issue the $52 783 refund to the bankruptcy
estate of Tel-Car, Inc. (plus one additional month of interest) and shall file said refund with the
appropriate Bankruptcy Court within 21 'days from the service date of this Order.
THIS IS A FINAL ORDER ON REMAND. Any party aggrieved by this Order may
appeal to the Supreme Court of Idaho pursuant to the Pub~c Utilities Law and the Idaho
Appellate Rules.
DONE by Order of the Idaho Public Utilities Co~ssion at Boise, Idaho this f).. Ad
day of August 2004.
Commissioner Hansen Out of the Office
DENNIS S.HANSEN, COJ\IIMI~SIONER
ATTEST:
~LD,Je D~ Jewell '
, ,
Commission Secretary
bls/O:USWT9924
ORDER NO. 29555
. .
./0
" ~-
VlILLIAM J. BATT, ISB No. 2938
PETER C.K. MARSHALL, ISB No. 2747
MARSHALL BATT & FISHER, LLP
S. Bank Plaza, Suite 500
101 S. Capitol Boulevard
Post Office Box 1308
Boise, ID 83701
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendants
UNITED STATES DISTRICT COURT"FOR THE
DISTRlCT OF IDAHO.
JOSEPHB. MCNEAL, d/b/aPAGEDATA
and INTERP AGE OF IDAHO, ROBERT
RYDER, d/b/a RADIO PAGING
ER VICE, and RICHARD
CRA WFOR TH, Bankruptcy Trustee for
TEL-CAR, INC. a bankrupt Idaho
corporation
Plaintiffs
vs.
QWEST CORPORATION and
MALHEUR BELL COMPANY
Defendants.
Case No. CIV03-473-MHW
DEFENDANTS' MEMORANDUM IN
SUPPORT OF THEIR MOTION TO
DISMISS UNDER RULE 12(b)(1) FOR
LACK OF SUBJECT MATTER
JURISDICTION AND IN THE
AL TERNA TIVE TO DISMISS
PLAINTIFFS P AGEDA T A AND
RADIO PAGING UNDER RULE 12(b)
AS A MATTER SUBJECT TO
ARBITRATION, ORIN THE
FURTHER AL TERNA TIVE TO STAY
PENDING ARBITRATION AND TO
FURTHER ORDER ARBITRATION,
AND FINALLY, IN THE'
, ,
AL TERNATIVE, FOR DISMISSAL
UNDER RULE 12(b )(6) OF THE RICO
COUNT AS TO ALL PLAINTIFFS
IF;-
(8\
; ;~~- . "~..:. . ., ,~~
EXHIBIT
DEFENDANTS' MEMORANDUM IN SUPPORT OF THEIR MOTION TO DISMISS UNDER RULE 12(b)(l)
FOR LACK OF SUBJECT MATTER JURISDICTION AND IN THE AL TERNA TIVE TO DISMISS
PLAINTIFFS PAGEDATA AND RADIO PAGING UNDER RULE 12(b) AS A MATTER SUBJECT TO'
ARBITRATION, OR IN THE FURTHER ALTERNATIVE TO STAY PENDING ARBITRATION AND TO
FURTHER ORDER ARBITRATION, AND FINALLY, IN THE ALTERNATIVE, FORDISMISSAL UNDER
RULE 12(b)(6) OF THE RICO COUNT AS TO ALL PLAINTIFFS, P.
INTRO D CTI ON
Defendants Qwest Corporation and Malheur Ben Company (collectively hereinafter
Defendants ) submit this memorandum in support of their Motion to Dismiss, or, in the
Alternative, to Stay Pending Arbitration.
This case arises under the Telecommunications Act of 1996
, ("
the Act"), Pub.L. 104-104
110 Stat. 56
, ,
which "created a new telecommunications regime designed to foster competition in
local telephone markets.Verizon Md. Inc. v. PSC, 535 u.S. 635, 638, 152 L. Ed. 2d 871, 122 S.
Ct. 1753 (2002). As explained below, the Act created a complicated system under which state
public utility commissions were federally conscripted to do most of the work in opening up local
markets. On the other hand, the decisions of the state commissions are not appealable or
reviewable by a state court, but are subject to review by federal district courts.
The plaintiffs are three paging companies: (1) Joseph McNeal d/b/a PageD'ata
PageData ), (2) Robert Ryder:., d/b/a Radio Paging ("Radio Paging ), and (3) Richard
Crawforth, trustee in bankruptcy for TeiCar, Inc. ("TelCar ). The Amended Complaint states
four counts: (1) racketeering under 18 D.C. g~ 1961-1962; (2) violations of the Act and
contracts; (3) wrongful denial of facilities; and (4) fraudulent inducement.
Defendants believe it is not entirely clear which counts apply to which Plaintiffs, but
Defendants believe the following to be the case:
PageData --' alleges it is entitled to damages for Qwest's breach of duties under the
Telecommunications Act and under its written interconnection agreements. PageData appears to
seek relief under all,four counts of the Amended Complaint.
DEFENDANTS' MEMORANDUM IN SUPPORT OF THEIR MOTION TO DISMISS UNDER RULE 12(b)(1)
FOR LACK OF SUBJECT MATTER JURISDICTION AND IN THE AL TERNA TIVE TO DISMISS
PLAINTIFFS PAGEDATA AND RADIO PAGING UNDER RULE 12(b) AS A MATTER SUBJECT TO
ARBITRATION, ORIN THE FURTHER ALTERNATIVE TO STAY PENDING ARBITRATION AND TO
FURTHER ORDER ARBITRATION, AND FINALLY, IN THE ALTERNATIVE, FOR DISMISSAL UNDER
RULE 12(b)(6) OF THE RICO COUNT AS TO ALL PLAINTIFFS, P. 2
Radio Paging - Radio Paging has written contracts with Qwest in Idaho and Malheur
Bell in Oregon. Radio Paging s claims are the same as PageData , except that Radio Paging
does not claim damages under Count Three (wrongful denial of facilities).
TelCar - TelCar had no written contract, but alleges that an "informal" contractual
relationship existed with Qwest in Idaho and Malheur Bell in Oregon. TelCar did not have an
interconnection agreement approved by a state commission, which means Tel Car would have
purchased its services ' and facilities from Defendants under state tariffs filed with the state
commissions in Idaho and Oregon. It is unclear to Defendants whether TelCar claims damages
under Cou~t Two, i.e. it is not clear whether TelCar claim its "informal" contract was an
interconnection agreement under the Act.
Defendants' motion to dismiss is based on the following arguments:
The Court lacks subj ect matter jurisdicti~~, because the facts alleged in the
Amended Complaint essentially describe an interconnection dispute under the Act. The law
requires that such disputes first be presented to a state public utilities commission whose
decisions may then by reviewed by this or another federal district court. Accordingly the
Amended Complaint must be dismissed.
In the alternative
, "
Plaintiffs pleading of the racketeering claim, Count One, is
defective under Ninth Circuit case law and must be dismissed.
In the alternative, the interconnection agreements of PageData and Radio Paging
include broad dispute resolution provisions which call for mandatory arbitration under the
Federal Arbitration Act. The Court should enforce those provisions by dismissing or staying this
action.
DEFENDANTS' MEMORANDUM IN SUPPORT OF THEIR MOTION TO DISMISS UNDER RULE 12(b)(l)
FOR LACK OF SUBJECT MATTER JURISDICTION AND IN THE AL TERN A TIVE TO DISMISS
PLAINTIFFS PAGEDATA AND RADIO PAGING UNDER RULE 12(b) AS A MATTER SUBJECT TO
ARBITRATION, OR IN THE FURTHER ALTERNATIVE TO STAY PENDING ARBITRATION AND TO
FURTHER ORDER ARBITRATION, AND FINALLY, IN THE ALTERNATIVE, FOR DISMISSAL UNDER
RULE 12(b)(6) OF THE RICO COUNT AS TO ALL PLAINTIFFS, P. 3
15:?3 PUG ?7, ?004 ,0: JIM JONES FR: U.:;. CUU~ I:::; t-HX . NO 11 *!::f(f~~ !-'HGl:.. ; c::/4'='
, U.S. Courts rv, ~sc d _FiJe~
AUG 26 2004
Cameron S. BurkeClerk, Idaho
TN THE UN1TED 8T A TES DISTR1CT COURT
FOR THE DISTRICT OF IDAHO
Defendants..
) CASE NO. cy 03-473-MHW
) ORDER
_. _h
JOSEPH B. McNEAL, d/b/a Pagedata
ET A L.
Plaintiffs,
QWEST CORPORATION, ct aI.,
---
On Augusl26, 2004~ a status conference was held between the Court and parties.
Although the case has been pending since it was I11cd on October 31
,.
2003, the litigation has not
. gotten offof~~square onen due to there being various parallel proceedings before both th~ Tdaho
SupTen1C Court and the Idaho Public Utilities Colnnlisslon C'~lPUC"). In rcviewillg the ease,
became apparent that the instant litigation would continue. to be held in abeyance while waiting
for the Idaho Supreme Court and the lPUC to act. It fUliher appeared that decisionsiatthe state
1cvellnight result in Plaintiff's claims hcre becomhig nlOOt. Plaintiff's counsel also stated that
discussions on settlement arc ongoing.
Taking into coTIS1dcratiol1 all Qfthese factors, the Court indicated that it was inclined to
enter an order disnl.isslt1g this case without prejudice as long as the parties would agree to waive
Order. page 1
EXHIBIT
, -
:;:1
. ,
15:?3 AWG 27, 2004 TO: JIM JONES FR: U. S. COURTS FAX NOTI *87752 PAGE: 3/4
any statute of 1imitations defenses that would potentially bar any clai111S on either side. Both
counsel represented on the rc:cord that they would agree to waive any future statute of linlitations
defenses in connection with Plaintiffs current clauns and Defendant's counterclaim should it
beCQll1C necessary to ref11e the case in the future. Counsel also slated that they did not object to a
dislnissal without prejudice.
Therefore, based on the foregoing, this case is hereby D!SMISSED WITHOUT
PREJUDICE, and with the right to refite without statute oflin1itations repercussions, should it
becon1C necessary in the futurc.
IT IS SO ORDERED.
. ,.
DATED: August
~,
2004.l~--
MIKEL H. WiLLIAMS
UNITED STATES MAGISTRATE JUDGE
Order - page 2
1~ : ~~ HUb ~() ~~~4 I U; JiM j UN!:.::)~ ~ ; U . ::i . LUU~ 1 = ~ HX NU I 1 *cr (" (~(;:: f-ihGi:. : 4/4
dkh
United States District Court
for the
District of Idaho
August 27, 2004
. * CLERK'S CERTIFICATE OF MAILING *
Re:1: 03-cv-OO473
I certify that I caused a copy of the attached document to be maj.led or faxed
to the following named persons:
Jim ~OQes 1 Esq. 1-208-385 -9599
JIM JONES & ASSOCIATBS
1275 ShorelineBoise, ID 83702-6870
William J Bat t, Esq. 1-208 -331-2 400
MARSHALL BATT & FISHER
PO Box 1308Boise, ID 83701
Chief Judge B. Lynn Wlnmill
Judge Edward J. Lodge
Chief Magistrate Judge Larry M. Boyle
agistrate Judge Mikel H. Williams
Visiting, Judges:
Judge David O. Cart Judge John C. Coughenour
Judge Thomas S. Z i 11 Y
, ,
Cameron'S. Burke 1 Clerk
Date:7-0(j BY :
(Deputy c fei'k
JIM JONES & ASSOCIATES
Attorneys at Law
1275 Shoreline Lane
Boise, Idaho 83702-6870
Boise: [phone] Fax: [phone]
June 14, 2004
Steve Dea, Manager
Interconnection Management
Qwest Corporation
1801 California Street, Suite 2420
Denver, CO 80202
Re:Type 1 and Type 2 Paging Connection Service Agreement for Robert
Ryder, d/b/a Radio Paging Service, for the State of Idaho
, Dear Mr. Dea:
You will recall that Qwest Corporation and Robert Ryder entered into Agreement No.
CDS-031106-0001 in early December of last year. Section 1.A. of Appendix A, pertaining
to rates and charges, requires that Mr. Ryder pay for the portion of the Qwest facilities used
' deliver third party traffic. The provision results in Mr. Ryder paying 24% of traffic
delivered to his system. Section 1.1 of the Agreement provides that where the Existing Rules
are materially changed, the Agreement shall be amended to reflect the modification or
change of the Existing Rules. On January 16, 2004, the United States Court of Appeals for
the District of Columbia Circuit entered its decision in Mountain Communications, Inc. v.
Federal Communications Commission, et aI., 355 F.3d 644 (D.C. Cir. 2004). It is our belief
that the Mountain Communications decision requires the elimination of the 24% transit
charges under the Agreement between Qwest and Mr. Ryder, particularly/since Qwest does
not furnish billing information for the transit traffic. It is hereby requested that the
Agreement be modified accordingly.
, /
JTJ/tg ( Un ~" nes
cc Bryan Sanderson, Via Fax To:' 20~-0225
William 1. Batt, Via Fax To: 331-2400
;~~,
EXHIBIT
~,j,....,:;,
:is
JIM JONES & ASSOCIATES
Attorneys at Law
1275 Shoreline Lane
Boise, Idaho 83702-6870
Boise: [phone] Fax: [phone]
July 19, 2004
Via Fax To: [phone]
Bryan Sanderson
Qwest Corporation.
1600 Seventh Avenue, Room 3007
Seattle, W A 98191
Re:Robert Ryder Interconnection Agreements
Dear Bryan:
Attached are copies of orders entered by the Idaho and Oregon Public Utility
Commissions approving the interconnection agreements that Bob Ryder entered into with
Qwest Corporation and Malheur Home Telephone Company in 1999. The Idaho agreement
was effective on May 13 , 1999, and the Oregon agreement was effective on September 22
1999. Qwest's records will reflect that Bob Ryder objected to being charged for transit
traffic under both agreements. In light of the Mountain Communications decision, Qwest
and Malheur have come around to our way of thinking and have agreed not to charge for
transit traffic unless the billing records can be provided. This provision should have been a
part of the two 1999 agreements and we are hereby requesting that the following language be
incorporated into both agreements, retroactive to their.respective approval dates:
Paging Provider does not have to pay facilities charges for Third Party Traffic
if (Malheur or QwestJ does not provide the originating company s calling
records to the Paging Provider s POCo
What we are asking for, in effect, is to have the two agreements amended, retroactively, and
to have Qwest and Malheur credit back all transit traffic charges from the beginning of those
agreements, together with accumulated interest on the amounts charged.
0'".Sl1:).cerely,
/ Jim Jones
William J. Batt
HP LASERJET 3150
PRINTER / FAX/ COPIER /SCANNER
AD HOC BROADCAST REPORT FOR
JIM JONES & ASSOCIATES
385 9599
JUL-19-12:51PM
JOB PHONE NUMBER / ADDRESS START TIME PAGES MODE STATUS
12063450225..................7/19 12:47PM......
. . . . . .. ...
COMPLETED........................................3312400..........................7/19 12:50PM......
..........
COMPLETED........................................
JIM JONES & ASSOCIATES
Attorneys at Law
1275 Shoreline Lane
Boise, Idaho 83702-6870
Bois.: [phone]
July 19, 2004
Fax: [phone]
Via Fax To: [phone]
Bryan Sanderson
Qwest. Corporation1600 Seventh Avenue, Room 3007
Seattle, ViA 98191
Re:Robert Ryder Interconnection Agreements
Dear Bryan:
Attached are copies of orders entered by the Idaho and Oregon Public UtilityConunissions approving the interconnection agreements that Bob Ryder entered into with
Qwest Corporation and Malheur Home Telephone Company in 1999. The Idaho agreementwas effective on May 13, 1999, and the Oregon agreement was effective on September 22
1999. Qwest's records will reflect that Bob Ryder objected to being charged for transit
traffic under both agreements. In light of the Mountain Communications decision, Qwestand Malheur have corne around to our way of thinking and have agreed not to charge for
transit traffic unless the billing records can be provided. This provision should have been a
part of the two 1999 agreements and we are hereby requesting that the following language btl
incorporated into both agreements, retroactive to their respective approval dates:
Paging Provider does not havc to pay facilities charges for Third Party Traffic
if (Malheur or QwestJ does not provide the originating company s calling
records to the Paging Provider s POCo
What we are asking for, in effect, is to have the two agreements amended. retroactively, and
to have Qwest and Malhcur credit back all transit traffic charges from the beginning of those
agreements, together with accumulated interest on the amoWlts charged.
William J. Batt
JIM JONES & ASSOCIATES
Attorneys at Law
1275 Shoreline Lane
Boise, Idaho 83702-6870
Boise: [phone] Fax: [phone]
September 2, 2004
Via Fax To: 331-2400
William 1. Batt
Marshall, Batt & Fisher, LLP
Attorneys at Law
O. Box 1308
Boise, ID 83701
Dear Bill:
If we are going to try to settle some or all of the pagers' claims , it should be done
fairly quickly. Our brief is due on September 13 and I am going to have to get started on it
early next week. If Qwest wants to keep dragging this out, please let me know so that I can
make plans. If there is a chance of settling along the lines that I proposed in my previous
correspondence, I could ask for a short extension to allow for discussions. Please let me
know what Qwest'spleasure is.
If Qwest is not interested in getting these matters resolved, we will soon be filing a
request with the PUC for arbitration regarding the effect of Order No. 29555 on the PageData
and Radio Paging interconnection agreements that were entered into in 1999. As I have
previously mentioned, they are both entitled to a refund of all transit charges paid under
those interconnection agreements based on the change of law provisions in those agreements
and the PUC's order giving retroactive effect to its decision. I presume Qwest will resist so it
will become necessary to proceed to arbitration. The limitations provisions in the arbitration
agreements have been rendered ineffective by Judge Williams ' order.
With best wishes, I am
JT J /tg
~incerely,
\ .
HP LASERJET 3150
PRINTER / FAX/COPIER / SCANNER
SEND CONFIRMATION REPORT FOR
JIM JONES & ASSOCIATES
385 9599
SEP-8: 55AM
START TIME USAGE PHONE NUMBER / ADDRESS TYPE PAGES MODE STATUSJOB
346 8 : 55AM 0' 24"2083312400 SEND..............1 /EC144 COMPLETED. ...,..
.,..... ..'.... ...................
TOTAL 24"PAGES SENT: PAGES PRINTED. 0
JIM JONES & ASSOCIATES
Attorneys at Law
1275 Shoreline Lane
Boise, Idaho 83702-6870
Boise: (208) 385-9::100
September 2, 2004
u: [phone] .
Via Fax To: 331-2400
William J. Batt
Marshall, Batt & Fisher, LLP
Attorneys at Law
O. Box 1308
Boise, 10 83701
Dear Bill:
If we are going to try to settle some or all of the pagers' claims , it should be donefairly quickly. Our brief is due on September 13 and I am going to have to get staned 1m itearly next week. If Qwest wants to keep dragging this out, please let me know so that I can
make plans. If there is a chance of settling along the lines that I proposed in my previouscorrespondence, J could. ask for a short extension to allow for discussions. Please let me
know what Qwest's pleasure is.
If Qwest is !lot interested in getting these matters resolved, we wiU soon be filing arequest with the PUC for arbitration regarding the effect of Order No. 29555 on the PagoData
and Radio Paging interconnection agreements that were entered into in 1999. As I havepreviously mentioned, they are both entitled to a refund of all transit charges paid underthose interconnection agreements based on the change of law provisions in those agreements
and the PUC's order giving retroactive effect to its decision. I presume Qwest will resist so it
will become necessary to proceed to arbitration. The limitations provisions in the arbitration
agreements have been rendered ineffective by Judge Williams' order,
With best wishes, I am,
JTJ/tg C~
Jones
Jli\ll JONES & ASSOCIATES.
Attorneys at Law
1275 Shoreline Lane
Boise, Idaho 83702-6870
Phone: [phone]
October 8, 2004
Fax: [phone]
William 1. Batt
Marshall, Batt & Fisher, LLP
Attorneys at Law
O. Box 1308
Boise, ill 83701
Re:Robert Ryder, et aL v. Qwest Corporation
Dear Bill:
Enclosed are two copies of my appeal brief. Now that the Commission has acted onyour motions, I think it is time for Qwestto pay. Ifpayment is not made within ten (10) daysof the date of this letter, I will file an action on behalf of the Commission as a privateattorney general to recover the $2 000 per day penalty provided for under LC. 9 61-642.
Also, Robert Ryder and Joseph McNeal hereby provide notification that they wish to
proceed to arbitration under the 'change of law provision of their respective 1999interconnection agreement in order to eliminate and obtain reimbursement for transit trafficcharges. As you know, this was an issue in the federal case and Judge Williams' ordereliminates any limitations defense. Please advise as to whether Qwest will voluntarily makereimbursement. If not, please provide the names of attorneys who you would suggest to actas arbitrator. I would recommend D.DuffMcKee, Jim Gillespie, or Tony :p'ark.
. '
"mcere y,
JTJ/tg
Enclosures