20061121Reply in support of motion to dismiss.pdf

RECEIVED
Mary S. Hobson
2 \ AH 9: 24Attorney & Counselo'4t105 NOV
999 Main, Suite 1103 ICtH'" t :,\c:
Boise ID 83702 UTILd-t'ES)CO~~~.r\SSION208-385-8666
November 21 2006
VIA HAND DELIVERY
Jean D. Jewell, Secretary
Idaho Public Utilities Commission
472 West Washington
Boise ID 83702-5983
RE:Docket No. QWE-O6-
Dear Ms. Jewell:
Enclosed for filing with this Commission are an original and seven (7) copies of Qwest
Corporation s Reply in Support of Motion to Dismiss. If you have any questions, please
contact me. Thank you for your cooperation in this matter.
Very truly yours
~~~~~
Enclosurescc: Service List
Boise-193000.10061273-00018
Mary S. Hobson (ISB. No. 2142)
999 Main, Suite 1103
Boise, ID 83702
Tel: [phone]
marv .hobson((V,qwest. com
RECEIVED
2005 NO~ 2 \ M-' 9= 30
, II L , c: "I f'1 \ Unl v !SIOUTILITIES COf.!i~
. I,
Adam L. Sherr
Corporate Counsel, Qwest
1600 7th Avenue, Room 3206
Seattle, WA 98191
Tel: [phone]
adam. sherr((V,qwest. com
Attorneys for Qwest Corporation
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
AT&T COMMUNICATIONS OF THE
MOUNTAIN STATES, INC.
Complainant Case No. QWE-O6-
QWEST CORPORATION,
QWEST CORPORATION'S
REPLY IN SUPPORT OF MOTION TO
DISMISS
Respondent.
INTRODUCTION
Nothing in AT&T Communications ofthe Mountain States, Inc.'s ("AT&T") Opposition
to Qwest Corporation s ("Qwest") Motion to Dismiss saves these claims from dismissal under
the two-year limitations period contained in the Telecommunications Act of 1996 (the "Federal
Act"). For the reasons set forth in Qwest's opening Memorandum and below , the Commission
QWEST CORPORATION'S REPLY MEMORANDUM
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should dismiss AT&T's Complaint with prejudice.
REPLY ARGUMENT
AT&T's complaint relates to two interconnection agreements that , as the FCC has found
terminated in 2002.1 Qwest terminated the agreements to eliminate disputes and bring itself into
compliance with AT&T's then-expressed interpretation of Federal Act Section 252. Qwest has
been in compliance ever since. Under federal law, terminated interconnection agreements need
not be on file with state utility commissions under Sections 252(a)(1) and (e), nor must the
voided terms be made available to third parties like AT&T under Section 252(i). Thus for over
four years Qwest has had no further obligations related to these terminated agreements.
To the extent AT&T believed it was harmed based on these past events, it could have
filed a complaint against Qwest with this Commission long ago. Indeed, in 2002 the FCC
expressly contemplated that AT&T might do so in an order addressing this very matter.
However, AT&T let the matter go, and the express two-year statute of limitations under Section
415 ofthe Federal Act expired in 2004. See 47 U.C. ~ 415.
Having sat on its federal rights for over four years, AT&T now tries to escape Section
415 by alleging in its Opposition that it is "only" asserting claims under state law. However, this
is artful pleading at its best. The Federal Act expressly establishes the scope of AT&T's rights
See Application by Qwest Communications International Inc for Authorization to Provide In-Region
InterLATA Services in the States of Colorado, Idaho, Montana, Nebraska, North Dakota, Utah, Washington
and Wyoming, 17 FCC Rcd 26 303 , at ~ 491 (2002) ("FCC Section 271 Order )(rejecting arguments of
AT&T and finding that it could grant Qwest's then pending application to provide long distance service in
Idaho and other states because Qwest had "demonstrated that the agreements mentioned by the parties
(including the two at issue here) either were filed, expired, terminated, superseded" or otherwise did not
present ongoing issues, and Qwest's response to AT&T was "persuasive.
See id. at ~ 466 (noting that if parties such as AT&T believed that issues relating to these agreements
remained, including issues related to the prior period before the agreements were terminated or filed, they
could enforce their rights under the Federal Act through a complaint filed with the FCC itself or a state utility
commission such as this one).
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here. The operative facts relate back to two long-ago terminated interconnection agreements
formed pursuant to the requirements of Section 252 of the Act. The relevant legal issues also
arise under the Federal Act: First what rights does the Act give a third party - such as AT&T
to know of the terms in another carrier s interconnection agreement (a matter addressed by
Sections 252(a) and (e) and related FCC orders). Second when and under what circumstances is
that third party eligible to request the same terms (a matter addressed by Section 252(i) and
related FCC rules). Third and most relevant here, federal law also establishes the deadline by
which a party may assert a claim based on these matters.
The Federal Act and Ninth Circuit precedent compel the same conclusion that the Oregon
Public Utility Commission ("Oregon Commission ) already reached in August - that AT&T's
claims are time-barred by Section 415 of the Federal Act. AT&T incorrectly argues that this
Commission should not apply collateral estoppel principles. But whether the Commission
examines these questions anew or applies collateral estoppel, the result is the same - AT&T's
claims must be dismissed.
Notwithstanding AT&T's Arguments, Section 252 of the Federal Act Governs
the Duties and Rights of the Parties Here
The narrow question before the Commission is whether AT&T's claims are, as the
Oregon Commission held
, "
actions based on (federal law) masquerading as state law claims" that
trigger the two-year federal statute oflimitations.3 The answer is clearly yes: AT&T repeatedly
Oregon Public Utility Commission, Order No. 06-465, Order Denying Petition for Reconsideration, at 3
(August 16, 2006) ("OPUC Reconsideration Order
),
aff'g on recon. Oregon Public Utility Commission
Order No. 06-230, Order Granting Motion to Dismiss AT&T Communications of the Northwest, Inc., et at.
Qwest Corporation Docket No. UM-1232, at 6 (May 11 2006) ("OPUC Complaint Order
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has acknowledged that the facts underlying these claims relate directly to rights and duties
created by Section 252 of the Federal Act. AT&T has argued numerous times, in many forums
that Qwest violated Section 252(a)(1) and (e) of the Act when it failed to file interconnection
agreements with McLeod and Eschelon. AT&T then has argued that it was denied the benefit of
requesting terms in those agreements. This "opt-" right, AT&T has argued, arises under
Section 252(i). AT&T made these arguments before the FCC and in various proceedings before
other state commissions.
Notwithstanding its current pleading strategy, AT&T was right the first time. AT&T'
claims stem from alleged violations of specific (and bounded) duties imposed on Qwest by the
Federal Act to file and provide carriers such as AT&T the opportunity to opt into the
Qwest/Eschelon and Qwest/McLeod agreements, not the Qwest/ AT&T interconnection
agreement or state law. Indeed to support its Opposition AT&T must run away from its own
Complaint. There, AT&T alleged that "Qwest breached it contracts with AT&T by failing to act
in good faith, by failing to act consistently with the intent of the 1996 Act by hiding the secret
agreements from AT&T, by intentionally failing to comply with the filing requirements of
federal and state law, and by intentionally preventing AT&T from exercising its rights to avail
itself of the discounted rates in the secret agreements S which describes rights established by
Section 252(i).
Similarly, even if Qwest had a duty to apprise AT&T and TCG of the existence of the
secret agreements and not discriminate in providing services under them, those duties arose, if at
See e.Motion to Dismiss at 3-
See Complaint at ~ 4 (emphasis added).
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all, under Section 252.6 It follows that the Commission can decide this motion, and dismiss this
case, without interpreting a single term in the Qwest/AT&T interconnection agreement. AT&T'
rights with respect to its competitors' agreements (Qwest/Eschelon and Qwest/McLeod), and
Qwest's duties as to those agreements, are established by federal law outside the Qwest/AT&T
agreennent itself
AT&T attempts to evade Section 415 by arguing that this case involves a dispute over the
interpretation or enforcement of an interconnection agreement. AT&T then tries to assert that all
such matters are governed only by state law. But that is simply not the law; both federal and
state law have a role in interconnection agreements. Here, the Commission need only decide
whether AT&T's specific claims are "actions based on (federal law J masquerading as state law
claims" that trigger the two-year federal statute oflimitations.7 And they are.
The cases cited by AT&T are entirely consistent with a conclusion that AT&T's claims
arise under the Federal Act. None of them find that interconnection agreement terms trump
federal law. Those decisions stand only for the principle that where federal law has not spoken
state law governs the interpretation of an interconnection agreement provision. For exannple
AT&T attempts to rely on several cases involving the complex question of whether reciprocal
compensation may apply to ISP-bound traffic in the context of provisions in various
(S)ection 252(i) mandates that the availability of publicly-filed agreements be limited to carriers willing to
accept the same terms and conditions as the carrier who negotiated the original agreement with the incumbent LEC.
See First Report and Order 11 FCC Rcd 16139, 16140. See also AT&T Corp. v. Iowa Uti/so Bd.525 u.S. 366 396
(1999) (upholding the FCC's interpretation of ~ 252(i)). If AT&T had no right to cherry-pick the alleged tenns of
the McLeod and Eschelon agreements here, then Qwest complied with federal law - and, therefore, could not have
discriminated against AT&T under state law. To decide otherwise would place state and federal law in
irreconcilable conflict - and, under AT&T's theory, would preempt federal law with state law (and stand the
Supremacy Clause on its head). See S. Const. art. VI, c1.2. ("the laws of the United States "shall be the supreme
Law of the Land; . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
OPUC Reconsideration Order at 3; OPUC Complaint Order at 6.
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interconnection agreements. But in each case, before reaching that question, the court first
reviewed federal law and the decisions of the FCC to determine whether (or not) this issue was
one that had been left to be determined under state law.
AT&T conveniently overlooks the Ninth Circuit's emphasis on a state agency s "weighty
responsibilities of contract interpretation under ~ 252" when (mis)characterizing the Ninth
Circuit's "holding" that state law applies. See Pac. Bell v. Pac-West Telecomm, Inc.325 F.
1114, 1128 (9th Cir. 2003). That court also held that any rules or directives of the FCC would
trump any inconsistent interpretation of an interconnection agreement by a state commission.
Again, AT&T has tried to evade this principle by ignoring federal law.
Here, federal law resolves the issues conclusively. The Ninth Circuit has held that a state
agency s authority to interpret or enforce an interconnection agreement derives from Section
252.11 And, as the Supreme Court put it
, "
there is no doubt ... that if the federal courts believe a
state commission is not regulating in accordance with federal policy they may bring it to heel.
This Commission similarly should bring AT&T to heel, and not allow the company to avoid
federal law simply by pretending that it does not exist.
See, e., Southwestern Bell Tel. Co, v. Public Utility Comm 'n of Texas 208 F.3d 475, 485-86 (5th Cir.
2000)("FCC expressly ruled that 'parties may voluntarily include (ISP-bound traffic within the scope of their
interconnection agreements under sections 251 and 252"'
);
Southwestern Bell Tel. Co. v. Brooks Fiber Comms of
Oklahoma, Inc.235 F. 3d 493, 499-500 (10th Cir. 2000).
Pacific Bell v. Pac-West Telecomm Inc" 325 F.3d 1114, 1130 (9th Cir. 2003).10 In doing so, AT&T attempted to sidestep Section 252(e)(6), which provides that review of state
commission enforcement actions must be brought in federal, not state, court. 47 US.C. ~252(e)(6).
Pac, Bel 325 F.3d at 1126 ("It is clear from the structure of the Act, however, that the authority granted to
state regulatory commissions is confIDed to the role described in ~ 252-that of arbitrating, approving, and enforcing
interconnection agreements.
12
AT&T Corp. v. Iowa Uti/so Bd.525 US. 366, 379 n. 6 (l999); see also Southwestern Bell Tel. Co.
Brooks Fiber Communications of Oklahoma, Inc.235 F.3d 493, 499 (lOth Cir. 2000) (holding that the Oklahoma
commission "ha( d) an obligation to interpret the Agreement within the bounds of existing federal law").
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Notwithstanding this Ninth Circuit authority, AT&T tries to buoy its argument by
asserting that the Commission s jurisdiction to interpret and enforce interconnection agreements
derives from state and not federal law, claiming that a contrary finding would violate the Tenth
AmendmentY But the very cases and state statute relied on by AT&T sink the argument.
Although Congress cannot "commandeer" state regulatory agencies with legislation forcing them
to regulate on behalf of Congress 14 "these limitations on congressional power do not prohibit
Congress from obtaining a state s voluntary consent to federal jurisdiction.15 The Seventh
Circuit specifically found that, with the 1996 Telecommunications Act
, "
the regulation of
interconnection agreements. . . are no longer, in the terms employed by the Supreme Court in
College Savings otherwise permissible activit(iesJ" for the states.Unlike the classic
example where states receive federal funds
, "
(h ) ere, the gratuity is federal regulatory power.
(T)he states are not merely acting in an area regulated by Congress; they are now voluntarily
regulating on behalf of Congress.Specifically, "the state commissions have conducted
arbitrations for interconnection agreements, have approved and enforced those agreements, and
have acted on an SGAT under a federal grant of power. Their authority to act was derived from
provisions of the Act and not from their own sovereign authority.19 The Seventh Circuit could
not more emphatically reject AT&T's argument.
See AT&T Opposition at 6.
New Yorkv. United States 505 U.S. 144, 168 (1992),
MCI Telecommnc 'ns Corp. v. Ill. Bell Tel. Co.222 F.3d 323 343-44 (7th Cir. 2000).
Id.
/d. (emphasis added).
Id.
Id.
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Moreover, the Seventh Circuit stated just as clearly that it was the decision of each state
to authorize state commissions to exercise federal power. Section 62-615(1) makes it abundantly
evident that Idaho has authorized the Commission to exercise that federal power: "The
commission shall have full power and authority to implement the federal telecommunications act
of 1996" and "may promulgate rules and/or procedures necessary to carry out the duties
authorized or required by the federal telecommunications act of 1996.There is nothing
logical" about AT&T's contrary contentions, especially given that Section 252 specifically
authorizes federal court review of agency determinations involving interconnection agreements
and consequently the Commission can similarly reject them outright.
AT&T next tries to support its artful pleading by claiming that "if two carriers agree in
their contract to abide by federal law " that agreement term is subject to state law, and a longer
state law limitations period attaches.20 This is nothing more than rhetorical bootstrapping. That
an interconnection agreement may reference federal law is hardly surprising for such an
inherently federally-based and -regulated document. But under AT&T's novel theory, a party
almost always could plead a state law claim for breach of contract, or tort, related to an
interconnection agreement and, in the process, evade Section 415 or other specific limitations of
federal law intended to support a consistent national telecommunications policy.
AT&T also defends its Complaint by misstating Qwest's position. AT&T suggests that
Qwest is arguing that "the mere fact that a contract exists because of, or growing out of, a federal
statutory scheme. . . transform ( s J a claim for enforcement of a contract into a question of federal
AT&T Opposition at 10.
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law.21 This is a "strawman" argument; Qwest makes no such assertion. Admittedly, courts and
commissions should be particularly careful to respect the unique structure for interconnection
agreements established in the Federal Act.But the issue here is not simply that this case
involves an interconnection agreement. Rather, the issue is that Section 252 - expressly by its
terms - addresses the operative facts and legal questions underlying AT&T's complaint:
whether AT&T has waived any rights it might have had with respect to these stale
interconnection agreements by not pursuing them within the time allowed by federal law.22
Under Section 252(a) and (e), Qwest has had no obligation to file terminated interconnection
agreements, or to make terminated provisions available to anyone; any such obligations ended
when the interconnection agreements ended in 2002. No state law is necessary to "interpret" an
interconnection agreement - federal law conclusively resolves the relevance of the old
agreements. As discussed in the motion, Section 415 controls regardless of the forum, and this
uniform period is consistent with Congress' intent to provide national uniformity in the Act's
Id. at 8
Empire Healthchoice Assurance, Inc. v. McVeigh 126 S. Ct. 2121 (2006), involved construction of the
Federal Employees Health Benefits Act ("FEHBA") and is inapposite in two ways. First, unlike here, the contract at
issue was an ordinary health insurance contract. Second, FEHBA's jurisdictional provision, 5 US.C. 9 8912
extended federal jurisdiction to civil actions only against the United States and that Congress had "considered
jurisdictional issues in enacting FEHBA (,) . . . confer(ring) jurisdiction where it found it necessary to do so.See
McVeigh 126 S. Ct. at 2126-, and 2133-34. This is not a situation where federal law is merely "referenced" in a
contract. Rather, federal law provides both the backbone requirement for interconnection agreements, and specific
rules governing the operative facts here to establish the parties' obligations and rights - including both their scope
and the period when such rights and obligations expire.
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application.
II.AT&T's Attempts to Avoid Estoppel Fail.
The Commission can readily dismiss this Complaint based on its own review of federal
law. But Qwest also demonstrated in its Motion why the Commission should give preclusive
effect to the Oregon Commission holding that AT&T'claims squarely fall under federal law
and the kinds of harms contemplated by the federal telecommunications framework and so may
not be made separately under state law.
AT&T raises several unavailing arguments as to why it should not be bound by the
Oregon Commission s holding that these nominally state law claims are subject to the federal
statute of limitations.First AT&T argues that according preclusive effect to the Oregon
decisions would be inconsistent with the 1996 Act's Interconnection Agreement scheme
According to AT&T, that "scheme" allows states to "implement their own policy choices so long
See Qwest Motion to Dismiss at 11-12. Congress amended Section 415 in 1974 but reaffmned that one of the
goals behind the provision was to ensure equality of treatment. See In re Tele-Valuations, Inc.73 F.c.c.2d
450, at ~ 6(1979) (quoting legislative history). Congress legislates against the background of preexisting
legislation and nowhere in the 1996 Act, which amended the 1934 Act and which together make up Title 47
did Congress express its desire to abrogate that limitations period. AT&T attempts to distinguish between the
two sections see AT&T Opposition at n. 5, insinuating that Section 415 applies only to provisions of the 1934
Act. The argument would torture basic principles of statutory interpretation by failing to read the Act as a
whole and would repeal a preexisting provision by implication, without any statutory justification.
Oregon Complaint Order at 6 (emphasis added). AT&T has separately filed a complaint in state court in
Oregon raising issues related to these same interconnection agreements. AT&T Commc ns of the Pac. Nw.
Qwest Corp., Multnomah County Circuit Court Case No. 0607-07247. In lieu of granting Qwest's motion to
dismiss, at a hearing on October 27, 2006, the court directed AT&T to strike the references to "interconnection
agreements" in the complaint, and allowed AT&T an opportunity to amend its complaint to address solely
intrastate access services after AT&T expressly abandoned any reliance on federal law. Qwest will evaluate
whether to refile its motion after reviewing any amended complaint AT&T may file.
AT&T Opposition at 13-15.
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as those choices do not impinge on federal prerogatives.
Qwest fully agrees that the 1996 Act governs this matter and that states cannot create
rights and remedies where the Act and the FCC already have spoken. Ninth Circuit and Supreme
Court precedents agree.As the Supreme Court explained in Iowa Utilities in rejecting an
analogous argument in favor of traditional state police powers
, "
a federal program administered
by 50 independent state agencies is surpassing strange." Rather than embrace AT&T's position
the Supreme Court clearly rejected it: "This is, at bottom, a debate not about whether the States
will be allowed to do their own thing, but about whether it will be the FCC or the federal courts
that draw the lines to which they must hew.,27 AT&T blatantly disregards the clear emphasis on
federal law in these opinions and the outright rejection of AT&T's argument.
Again, this is not a case where federal law is silent, leaving room for state law in the
interpretation" of a particular provision of an interconnection agreement. Rather, federal law
establishes and specifies the fundamental rights and duties as to (1) when an agreement with one
party must be on file with a utility commission so that third party competitors like AT&T may
see it (Section 252(a)); and (2) when a third party like AT&T has a right to opt-in to the terms in
such an ongoing agreement to get the same terms (Section 252(i)). Under federal law, those
rights and duties expired when the agreements were terminated in 2002.
And that, as the Oregon Commission found, is exactly why these nominal state law
claims are barred by the two-year statute oflimitations in Section 415 ofthe Federal Act. AT&T
Id. at 15. AT&T also suggests that the parties were free to negotiate without regard to the requirements of
federal law. See AT&T Opposition at 10. AT&T fails however to acknowledge that the specific obligations
to which it is referring were not "freely negotiated" and are expressly mandated by federal law. See 47 u.S.
251(c)(2) & (3) (imposing duties to provide interconnection and unbundled access "on rates, terms, and
conditions that are just, reasonable, and nondiscriminatory
Iowa Utils, Ed.525 u.S. at 378 n. 6.
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chose its forum and litigated the purely legal question of whether its nominal state law claims are
barred by Section 415. That is the same issue it now presents anew to this Commission. Yet this
legal question deserves a uniform answer across the country - the very reason why Section 415
governs regardless of the forum.The Federal Act establishes a nationwide system of
interconnection agreements, with national rules for filing agreements under Section 252(a) and
( e), and for third parties to opt into such agreements under Section 252(i). A uniform statute of
limitations is one stick in the bundle of rights established by the Act in this area through
application of Section 415.
Furthermore, Supreme Court precedent precludes the "state-by-state allocation of
authority" AT&T posits when the same parties litigate questions of federal law involving the
same facts before multiple bodies. Unlike in Global Naps v. Massachusetts Department of
Telecommunications and Energy, this Commission is not presented with a question of what state
law requires, but one of what federal law demands.28 The Oregon Commission found that
AT&T's claims were based on the allegation that "Qwest violated section 252(i), thereby
depriving them of the opportunity to opt into more favorable contracts. Because federal law
already covers the operative facts here
, "
the breach of contract claims may not be made
separately from the violations offederallaw.
See 427 F.3d 34, 48 (1st Cir. 2005).
Oregon PUC Order at 6. (emphasis added). AT&T has separately filed a complaint in state court in Oregon
raising issues related to these same interconnection agreements. AT&T Commc ns of the Pac. Nw. v. Qwest
Corp., Multnomah County Circuit Court Case No. 0607-07247. Faced with the Oregon Commission decision
and Qwest's motion to dismiss , AT&T recanted its federal law allegations in state court and asserted that it
was seeking recovery only for intrastate access charges. The Oregon Court then granted Qwest's motion to
strike any and all allegations relating to federal law. While the Court also denied Qwest's motion to dismiss
it did so recognizing that Qwest could renew that motion after AT&T repled its now substantially different
claims. Here, AT&T's complaint makes no distinction between interstate and intrastate services and has not
purported to similarly limit the scope of its complaint here.
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Second AT&T argues that it would be "unfair" to apply its loss in Oregon to this case
because, in AT&T's view , the Oregon Commission reached the wrong result.3o There is no need
to respond to this assertion, which simply cross-references AT&T's earlier arguments on the
merits, arguments that Qwest already has addressed. AT&T has presented no serious argument
as to why it should be allowed to reargue the holdings of the Oregon Commission once more
here. But ifthe Commission is not prepared to give the Commission s orders preclusive effect, it
at least should treat them as strong precedent and reach the same result, a result mandated by the
Federal Act and the Supremacy Clause of the Constitution.
Qwest also must respond to AT&T's inaccurate discussion of an interlocutory order of
the WUTC, which AT&T misleadingly characterizes as creating "inconsistent decisions.31 This
argument is unfair to the WUTC, which in fact has not yet addressed the merits of this issue at
all.In the WUTC proceeding, AT&T was appealing from an Administrative Law Judge
decision dismissing a complaint related to the same two agreements here. But in its Washington
complaint, AT&T had not asserted a breach of contract claim; instead, it attempted to claim
reparations for overcharges under a specific Washington state statute. AT&T had argued that
two-year statute of limitations applied to these statutory reparations claims , a position the ALJ
rejected firmly in favor of a six-month limitation period.
AT&T sought interlocutory review of that ruling, making only a passing reference in a
footnote that "(i)fthe Commission were to determine that the statutory causes of action are time
Id. at 22.
Opposition at 18-21.
See AT&T Communications of the Pacific Northwest, Inc. v. Qwest Corporation Docket No. UT-051682
Interlocutory Order Reversing Initial Order; Denying Motion for Summary Determination or Dismissal, at 4-
5. Attachment 1 to AT&T's Opposition (hereinafter "WUTC Order
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barred - which they are not - AT&T and TWTC request leave to amend their Complaint to state
a cause of action for breach of contract,,33 (which AT&T claimed would be governed by a six-
year statute of limitations under state law). AT&T provided no legal authority to support its
contention that it could bring a state contract claim on these facts, and indeed, expressly admitted
in the footnote that it "did not include a breach of contract cause of action in (the) Complaint.,,
As presented, then, neither Qwest nor AT&T had reason in Washington to address the
potential applicability of the federal statute of limitations in Section 415 until and unless AT&T
later were to try to amend its complaint. Although Qwest asserted in passing that AT&T would
be unable to establish a breach of contract claim if given leave to amend, Qwest emphasized that
(a)t this point. . . at most they have the claim they have brought, a claim for reparations, which
is time barred under the (six month) statute oflimitations.
The WUTC agreed with the ALJ and Qwest that "the six month statute is appropriate to
the theory on which the complaint was pleaded.36 But then, without the benefit of briefing on
the Section 415 issue, the WUTC went on to state that AT&T could amend its complaint to
assert a breach of contract claim, and sua sponte added that a six year state statute of limitations
applied. Qwest has sought review ofthe WUTC's decision and expects the WUTC will correctly
hold that Section 415 applies when it reviews a full record on the subject. Meanwhile, this
Commission should understand the interlocutory WUTC order for what it is and what it is not.
AT&T and TWTC Opposition to Qwest Motion for Summary Determination and Dismissal, attached as
Exhibit A, at n. 19.
/d.
Qwest's Reply to the AT&T/Time Warner Opposition to Qwest's Motion to Dismiss , attached as Exhibit B, at
~ 11.
WUTC Order, ~ 22.
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The Commission should apply collateral estoppel principles to issues necessarily decided by the
Oregon Commission, such as the discovery date, and preclude AT&T from wasting valuable
resources and time relitigating the same issues here.
Conclusion
For the foregoing reasons, the Commission should grant this motion and dismiss AT&T's
claims with prejudice.
DATED this 20th day of November, 2006.
Respectfully submitted
~ ~
It~
Mary S. bson (ISB. No. 2142)
999 Mai . Suite 1103
Boise, ID 83702
Adam L. Sherr
Corporate Counsel, Qwest
1600 7th Avenue, Room 3206
Seattle, WA 98191
Attorneys for Qwest Corporation
QWEST CORPORATION'S REPLY MEMORANDUM
IN SUPPORT OF MOTION TO DISMISS
Case No. QWE-O6-17--Page 15 of16
\\\BA - 066983/000055 - 217090 v1
CERTIFICATE OF SERVICE
I do hereby certify that a true and correct copy of the foregoing QWEST CORPORATION'
REPLY MEMORANDUM IN SUPPORT OF MOTION to DISMISS was served on the 21
day of November, 2006 on the following individuals:
Jean D. Jewell
Idaho Public Utilities Commission
472 West Washington Street
O. Box 83720
Boise, ill 83702
Telephone [phone]
Facsimile: [phone]
i iewell((V,puc.state.id.
Hand Delivery
U. S. Mail
Overnight Delivery
Facsimile
Email
Molly O'Leary
Richardson & O'Leary
515 North 2ih Street
O. Box 7218
Boise, Idaho 83707
mo II y((V,richardsonandoleary. com
Hand Delivery
--K- u. S. Mail
Overnight Delivery
Facsimile
Email
Theodore A. Livingston
Dennis G. Friedman
Mayer, Brown, Rowe & Maw LLP
71 South Wacker Drive
Chicago, IL 60606-4637
dfri edman((V,ma yer bro wll. com
Hand Delivery
U. S. Mail
Overnight Delivery
Facsimile
----K- Email
Dan Foley
General Attorney & Assistant General Counsel
AT&T West
O. Box 11010
Reno, Nevada
df6929((V,attcom
Hand Delivery-X. u. S. Mail
Overnight Delivery
Facsimile
Email
Sllk/.-z
Mary S. H son
Attorney or Qwest CorporatIOn
QWEST CORPORATION'S REPLY MEMORANDUM
IN SUPPORT OF MOTION TO DISMISS
Case No. QWE-O6-17
--
Page 16 of
\\\BA - 066983/000055 - 217090 v1
EXHIBIT A
BEFORE THE WASHINGTON
UTILITIES AND TRANSPORTATION COMMISSION
AT&T COMMUNICATIONS OF THE
PACIFIC NORTHWEST, INC., TCG
SEATTLE, AND TCG OREGON; AND
TIME WARNER TELECOM OF
WASHINGTON, LLC
) DOCKET NO. UT-05l682
Complainants
AT&T AND TWTC OPPOSITION TO
QWEST MOTION FOR SUMMARY
DETERMINATION AND DISMISSAL
QWEST CORPORATION
Respondent.
Pursuant to WAC 480-07-380, AT&T Communications of the Pacific Northwest, Inc.
TCG Seattle, and TCG Oregon (collectively "AT&T") and Time Warner Telecom of
Washington, LLC ("TWTC"), provide the following opposition to the motion of Qwest
Corporation ("Qwest") for summary determination and dismissal ("Motion ). AT&T and
TWTC's Complaint is not barred by any applicable limitations period and seeks relief
that this Commission has full authority to grant. Accordingly, the Commission should
deny the Motion.
BACKGROUND
Qwest entered into several agreements beginning in 2000 with Eschelon Telecom
Eschelon ) and McLeodUSA Telecommunications Services, Inc. ("McLeodUSA"
governing Qwest's provisioning of services pursuant to Section 251 of the
TelecommWlications Act of 1996 ("Act"). Qwest did not file any of these agreements
AT &TITWTC OPPOSITION TO
QWEST MOTION TO DISMISS
with the Commission for approval under Section 252.1 Well over one year after these
agreements were executed, Qwest provided them to the Commission as confidential
documents in response to the Commission s directive to do so in connection with its-
review of Qwest's compliance with Section 271 of the Act?
AT&T and TWTC became aware of the existence of secret agreements between
Qwest and other competitive local exchange companies ("CLECs ) in Minnesota when
that state commission initiated complaint proceedings against Qwest in March 2002 for
failure to file such agreements. AT&T and TWTC (as opposed to their Minnesota
affiliates), however, did not have access to these agreements because they were protected
from disclosure as confidential or "trade secret" information to be used only for the
purpose of the Minnesota proceeding. Accordingly, "AT&T urge ( d) the Commission to
conduct an investigation into the possibility that Qwest hard) similar agreements in
Washington" in the context of the Commission s Section 271 review.3 The Commission
refused to conduct such an investigation in that proceeding but "stated that the
Commission would establish a docket to allow Qwest to continue to file any unfiled
agreements or amendments to interconnection agreements, and would discuss how the
Commission would address the agreements within that docket."
Commission Staff investigated the confidential agreements that Qwest filed
pursuant to the Commission directives and initiated complaint proceedings in Docket No.
See, e., WUTC v. Advanced TelCom Group, Inc., et al., Docket No. UT-033011
Unfiled Agreements Docket"), Order No. 21 (Feb. 28, 2005).
In re Investigation into Qwest s Compliance with Section 271 (C), Docket No. UT-
003022 ("Section 271 Docket"), Bench Request No. 46 & Qwest response to same.
Id.Qwest Supp. Post-Hearing Brief on Public Interest Issues at 11 (filed June 7, 2002).
. 4 Id.th Supp. Order, , 7 (July 15 2002).
AT &TrrwTC OPPOSITION TO
QWEST MOTION TO DISMISS
UT-0330ll against Qwest and several CLECs in August 2003 for failure to file the
agreements with the Commission as required under applicable federal and state law
Unfiled Agreements Docket,,5 AT&T was a named defendant and TWTC intervened.
Both companies actively participated in that proceeding, and TWTC expressly sought
compensation for CLECs for Qwest's unlawful conduct. In its final order issued
February 28, 2005, the Commission approved a settlement between Commission Staff
and Qwest that required Qwest to pay fines, but the Commission refused to consider the
issue of whether Qwest should be required to pay compensation to CLECs.
Less than nine months later, AT&T and TWTC filed their Complaint initiating
this docket. The Commission has already determined that Qwest willfully violated
federal and state law by failing to file its agreements with Eschelon and McLeodUSA and
refusing to make the rates and discounts in those agreements available to other CLECs.
AT&T and TWTC allege in their Complaint that they each would have adopted the rates
and discounts and any reasonably related terms from those agreements, and accordingly
Qwest overcharged AT&T and TWTC for services under their respective interconnection
agreements.
ARGUMENT
Qwest contends that the Commission should dismiss the Complaint on two
grounds: (1) the causes of action allegedly were not raised within the applicable
limitations period; and (2) the Commission purportedly does not have authority to grant
the relief requested. Neither of Qwest's claims has any merit. AT&T and TWTC filed
5 Unfiled Agreements Docket, Order No. 21.
Id.
Id.
AT&TffWTC OPPOSITION TO
QWEST MOTION TO DISMISS
their Complaint less than two years after the Eschelon and McLeodUSA agreements were
publicly disclosed in Washington. Even if the causes of action in the Complaint could
construed as having accrued before that disclosure, the Complaint was timely filed
pursuant to the doctrine of equitable tolling. The very statutes that Qwest cites for
limitations purposes, moreover, authorize the Commission to grant the relief requested in
the Complaint i. e.to require Qwest to refund the difference between what AT&T and
TWTC actually paid Qwest for services and the amounts they would have paid had they
been able to take advantage of the rates and discounts in the unfiled Eschelon and
McLeod USA agreements. The Commission, therefore, should deny Qwest's Motion.
The Complaint Is Not Time Barred.
AT&T and TWTC timely pursued the claims raised in their Complaint. Qwest
disagrees, contending that the two-year limitation period in RCW 80.04.240 and 4.16.130
began to run as early as March 2002 and expired long before AT&T and TWTC filed
their Complaint. "The limitation period commences when a cause of action accrues and
tolls when a complaint is filed or a summons served. A cause of action accrues when the
party has a 'right to apply to a court for relief."'s More specifically, AT&T and TWTC'
claims did not accrue for limitations purposes until they "discovered or reasonably should
have discovered all the essential elements of (their) possible cause ofaction.
AT&T and TWTC did not have sufficient information or the ability to file an
individual complaint with the Commission with respect to the effect of Qwest's secret
agreements with Eschelon and McLeodUSA in Washington until June 8, 2004, the date
Us. Oil Refining Co. v. Department of Ecology, 96 Wn.2d 85 , 91 , 633 P.2d 1329(1981).
Ohler v. Tacoma General Hospital 92 Wn.2d 507, 514, 598 P.2d 1358 (1979).
AT &T/TWTC OPPOSITION TO
QWEST MOTION TO DISMISS
the agreements publicly were disclosed as exhibits to Commission Staff testimony in the
Unfiled Agreements Docket. Qwest inaccurately imputes prior knowledge to AT&T and
TWTC because of the participation of their affiliates in the Minnesota complaint
proceeding. AT&T and TWTC knew that there were unfiled agreements proceedings in
Minnesota, but AT&T and TWTC did not know whether any Eschelon or McLeodUSA
agreements were effective in Washington. Indeed, Qwest conceded as much in June 2002
when it belittled AT&T's inability to demonstrate that the Minnesota agreements had any
impact in Washington.10 Even if such infonnation were discemable from the Minnesota
agreements themselves, those agreements were protected from public disclosure as
confidential infonnation. To the extent that AT&T's and TWTC's Minnesota affiliates
had access to those agreements, AT&T and TWTC could not use any infonnation gained
from such access outside of the Minnesota proceeding, including as a basis for filing a
complaint in Washington.
Similarly in this state, Qwest provided the Eschelon and McLeodUSA agreements
to the Commission as confidential documents. To the extent that AT&T and TWTC had
access to the agreements that Qwest filed as parties to the Section 271 review proceeding,
they could not use that knowledge for any purpose other than in that docket. Not until
Commission Staff publicly disclosed the Eschelon and McLeodUSA agreements on June
2004, could AT&T and TWTC file a complaint based on the provisions of those
agreements. AT&T and TWTC filed their Complaint in this proceeding on November 4
10 Section 271 Docket, Qwest Supp. Post-Hearing Brief on Public Interest Issues at 11-
12.
AT &T/TWTC OPPOSITION TO
QWEST MOTION TO DISMISS
2005 , less than 17 months after that date. The Complaint thus was filed well within the
24 month limitation period.
10.The Complaint should be considered timely filed even ifthe Commission were to
find some basis to conclude that AT&T and TWTC's claims accrued as early as June
2002 when "Qwest provided these agreements to the Commission in Washington in the
context of its Section 271 proceeding.11 Washington and federal "(cJourts have held that
when extraordinary forces, rather than plaintiff's lack of diligence , account for the failure
to file a timely claim, equitable tolling is proper.
11.Here, the limitations period should be tolled during the pendency of the
Commission s Section 271 Docket and consideration of the Commission s own
complaint in the Unfiled Agreements Docket. AT&T made every effort to have the
Commission investigate the unfiled agreements in the context of the Section 271 Docket
but the Commission declined to do so, expressly deferring that investigation to a separate
docket. Once the Commission initiated the Unfiled Agreements Docket, AT&T and
TWTC reasonably believed that its scope included remedies for CLECs who were denied
the lower rates and discounts that Qwest provided to Eschelon and McLeodUSA. Other
state commissions in similar proceedings provided compensation for damaged CLECs as
well as fines, including the Minnesota proceeding that Qwest cites.13 The Commission
II Motion ~ 8. As discussed above, no earlier date is even arguably applicable.
12
Seattle Audubon Soc'y v. Robertson 931 F.2d 590,596 (9th Cir. 1991).
13 In re Continued Investigation and Penalty Phase Ordered in Utility Case No. 3750
Regarding Unfiled Agreements Between Qwest and CLECs, New Mexico Public
Regulatory Commission Case No. 03-00108-UT (providing CLEC recovery in the
penalty phase of its proceeding); Arizona Corporation Commission Docket No. RT-
00000F-02-0271 (providing CLEC recovery in the settlement proposal accepted by
AT &T/TWTC OPPOSITION TO
QWEST MOTION TO DISMISS
expressly contemplated addressing such remedies in the Unfiled Agreements Docket, 14
and TWTC vigorously pursued them. The Commission, however, ultimately refused to
consider remedies for CLECs.15 The Commission should not now bar AT&T and TWTC
from filing their own complaint because they relied on the Commission s Section 271
Docket and Unfiled Agreements Docket to redress their grievances.
12.AT&T and TWTC filed their Complaint well within a two-year time period that
was tolled during the pendency of these related dockets. The Commission issued its final
order on reconsideration in the Section 271 Docket on July 15,2002. Staff filed its
complaint in the Unfiled Agreements Docket on August 14 2003, and the Commission
issued its final order on February 28, 2005. If the Commission were to determine that the
causes of action in the Complaint accrued in June 2002 - which they did not - tolling the
limitations period during those times would mean that effectively only 21 months elapsed
before AT&T and TWTC filed the Complaint 16 That time is reduced to nine months
using the more defensible (but nevertheless incorrect) accrual date of September 8, 2003
(the date of the prehearing conference in the Unfiled Agreements Docket) if the
limitations period is equitably tolled. AT&T and TWTC, therefore, timely filed their
Complaint within the two-year limitation period Qwest cites.
Qwest); In re Investigation into Unfiled Agreements Executed by Qwest Corp.Colorado
PUC Docket No. 02I-572T (denying the original settlement proposal offered by Qwest
that excluded CLEC recovery and granted the proposal that offered CLEC recovery).
14 Unfiled Agreements Docket, Order No. 5, ~ 129.
15 Order No. 21.
16 From June 2002 to November 2005 is 41 months. Subtracting approximately six
weeks for the Section 271 Docket and 18 and a half months for the Unfiled Agreements
Docket leaves 21 months.
AT&TITWTC OPPOSITION TO
QWEST MOTION TO DISMISS
13.One other factor the Commission should consider in determining the timeliness of
the Complaint is that Washington law provides a period of six years for actions to be
brought arising out of a written contract 17 Qwest's interconnection agreements with both
AT&T and TWTC that were effective during the relevant time period include "most
favored nation" provisions that require Qwest to make available terms and conditions of
other interconnection agreements. IS The source of this obligation is a written contract
but it is the same obligation imposed by the Act and Washington statutes that the
Commission previously determined that Qwest willfully violated. AT&T and TWTC
filed their Complaint well within six years from the earliest conceivable date that Qwest
could argue that their cause of action arose. Qwest thus cannot reasonably contend that
AT&T and TWTC's claims are "stale" or that Qwest would suffer any prejudice because
AT&T and TWTC did not file their individual Complaint before now. These
circumstances further demonstrate that the Commission should conclude that the
Complaint was timely filed.
17 RCW 4.16.040(1).
18 Agreement for Local Wireline Network Interconnection and Service Resale Between
AT&T and (Qwest), Section 2.1 (filed July 25, 1997); Interconnection Agreement
Between TCa Seattle and (Qwest) Section XXVIII (Dec. 16, 1996); TWTC (as assignee
of aST Telecom) and (Qwest) Arbitrated Interconnection Agreement for the State of
Washington, Section XXXIV.
19 AT&T and TWTC did not include a breach of contract cause of action in their
Complaint. If the Commission were to determine that the statutory causes of action are
time barred - which they are not - AT&T and TWTC request leave to amend their
Complaint to state a cause of action for breach of contract.
AT&TITWTC OPPOSITION TO
QWEST MOTION TO DISMISS
The Commission Has Authority to Grant the Requested Relief.
14.AT&T and TWTC have requested that the Commission require Qwest to refund
the difference between what AT&T and TWTC actually paid Qwest for services under
their interconnection agreements and the amounts they would have paid had they been
able to take advantage of the rates and discounts in the unfiled Eschelon and
McLeodUSA agreements. Qwest contends that the Commission is not authorized to
award such relief. Such a limitation would be news to the legislature and the
Commission. Indeed, Qwest's position is a bit ofa paradox, given that Qwest contends
that RCW 80.04.220 through 80.04.240, which authorize the Commission to redress
overcharges, apply when determining the appropriate limitations period but do not apply
for purposes of determining the Commission s authority to grant AT&T and TWTC'
requested relief.
15.The statutes unquestionably authorize the Commission to order the relief sought
in the Complaint. The legislature has expressly empowered the Commission to require
refunds of overcharges, which is precisely what AT&T and TWTC have requested.
Qwest, however, maintains that the rates that AT&T and TWTC paid were not "excessive
or exorbitant" or "in excess of the lawful rates" within the meaning of the statutory
language because the Commission had approved those rates. The statutes are not
susceptible to such a limited interpretation.
16.AT&T and TWTC have alleged that they were entitled to pay the same rates and
discounts that Qwest made available to Eschelon and McLeodUSA and that Qwest
unlawfully discriminated against AT&T and TWTC by refusing to make those rates
available to them. In other words, the "reasonable" and "lawful" rates that Qwest should
AT &T/TWTC OPPOSITION TO
QWEST MOTION TO DISMISS
have charged AT&T and TWTC were the same rates that Qwest charged Eschelon and
McLeodUSA. Accordingly, the rates the Commission had approved generally for
Section 251 services were "excessive or exorbitant" and "unlawful" when charged to
AT&T and TWTC because those rates exceeded the reasonable and lawful rates that
Qwest charged Eschelon and McLeodUSA and should have charged AT&T and TWTC.
Indeed, if Qwest were to deny an end user customer the same rates Qwest charges other
similarly situated customers, Qwest could not claim that the customer has no recourse
simply because the customer is paying the tariff rate. The circumstances here are no
different and do not insulate Qwest from its responsibility to charge only those rates that
AT&T and TWTC were entitled to pay.
17.Qwest also relies on a Minnesota federal district court's decision that Minnesota
statutes do not authorize that state commission to grant restitutional relief. That decision
is simply irrelevant. Minnesota apparently does not have statutes that are equivalent to
RCW 80.04.220 through 80.04.240, which renders the Minnesota court's analysis
inapplicable on its face. Even apart from those statutory provisions, Qwest has not
demonstrated that the Minnesota statutes at issue before the Minnesota court are the same
as other Washington statutes or that Minnesota and Washington courts interpret their
respective statutes similarly. Qwest, moreover, fails to cite any Washington court
decision that interprets Washington statutes to preclude the Commission from requiring a
utility to refund the difference between the discriminatory and unreasonable charges it
has imposed on a customer and the lawful amounts that should have been charged. The
Minnesota court decision, therefore, has no bearing whatsoever on the Commission
authority under Washington law.
A T&T/TWTC OPPOSITION TO
QWEST MOTION TO DISMISS
CONCLUSION
18.The Motion is yet another attempt by Qwest to evade the consequences of its
illegal behavior. AT&T and TWTC timely filed a Complaint alleging that they paid
excessive rates for Qwest services because Qwest unlawfully denied them the rates and
discounts that Qwest offered to Eschelon and McLeodUSA. The Commission should
find that AT&T and TWTC may pursue their Complaint and should deny the Motion.
DATED this 6th day of January, 2006.
DA VIS WRIGHT TREMAINE LLP
Attorneys for AT&T Communications of the
Pacific Northwest, Inc., TCG Seattle, and
TCG Oregon, and Time Warner Telecom of
Washington, LLC
AT&T COMMUNICATIONS OF THE
PACIFIC NORTHWEST, INC., TCG
SEA TILE OREGON
AT&T/TWTC OPPOSITION TO
QWEST MOTION TO DISMISS
CERTIFICATE OF SERVICE
Docket No. UT -051682
I hereby certify that on the date given below the original and 12 true and correct copies of AT&T
and TWTC Opposition to Qwest Motion for Summary Determination and Dismissal., in the
above-referenced docket were delivered by Federal Express overnight delivery and email to:
Ms. Carole J. Washburn, Secretary
Washington Utilities & Transportation Commission
1300 S. Evergreen Park Drive SW
Olympia, W A 98504-7250
E-mail: records~wutc.wa.gov
On the same date, a true and correct copy was sent by email and by regular U.S. Mail, postage
prepaid, to:
Lisa Anderl Sally Johnston
Adam Sherr Attorney General's Office
Qwest Corporation PO Box 40128
1600 7th Avenue, Room 3206 Olympia W A 98504
Seattle, WA 98191 Email: siohnsto~wutc.wa.gov
Email: Lisa.Anderl~qwest.com
Simon flitch
Public Counsel
Office of the Attorney General
900 Fourth Avenue, Suite 2000
Seattle, W A 98164
Email: simonf~atg.wa.gov
DATED this day of January, 2006.
By:
SEA I 740766v I 19977-217
Seattle
EXHIBIT B
BEFORE THE WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION
AT&T CO~CA TIONS OF THE
PACIFIC NORTHWEST, INC., TCG
SEA TILE, AND TCG OREGON; AND
TIME WARNER TELECOM OF
WASHINGTON, LLC
Docket No. UT-051682
Complainants
QWEST'S REPLY TO THE
AT&T/TIME WARNER OPPOSITION
TO QWEST'S MOTION TO DISMISS
QWEST CORPORATION
Respondents
INTRODUCTION
Qwest Corporation ("Qwesf') files this reply to the "Opposition
" ("
Answer") filed by
Complainants on January 6, 2006. This reply addresses the numerous inaccuracies contained
in Complainants' Answer and addresses the new matters raised in that filing.
II.ARGUMENT
Complainants' Answer Contains Numerous Inaccuracies with Re2ard to the
A vailabilitv of the Eschelon and McLeod A2reements
As described in the Complaint herein, Complainants take issue only with certain agreements
Qwest entered into with McLeod and Eschelon. While Complainants never specifically
describe which agreements in particular are the subject of the complaint, it is easy to see from a
QWEST'S REPLY TO THE AT&TffWT
OPPOSITION TO QWEST'S MOTION TO DISMISS
Page 1
Qwest
1600 7th Ave., Suite 3206
Seattle, WA 98191
Telephone: [phone]
Facsimile: [phone]
review of the facts that Complainants have had reasonable access to each and every one of
those agreements for far longer than the applicable limitations period. Complainants'
representations to the contrary are disingenuous at best.
Complainants claim, at paragraph 3, that they did not have access to the agreements in the
context of the Minnesota case because those agreements were designated as confidential, and
because only their Minnesota affiliates were able to review or access those documents. This is
simply not the case. Qwest publicly filed eleven agreements with the Minnesota Commission
on March 13, 2002. See Attachment 1. Even if it were the case that the agreements were filed
under seal, there was ample publicly available information in the Minnesota case that any
reasonable person would have understood to give rise to a cause of action in Washington.
One of the most obvious pieces of evidence that this information was available is contained in
Time Warner s comments to the Minnesota Commission, filed January 21 2003 , and inc1uded
with Qwest's Motion for Summary Determination as Exhibit 3. Those comments are attached
again for the Commission s convenience as Attachment 2 to this reply. Even if those
comments were informed by a review of confidential material, the comments themselves were
publicly available, and Time Warner s Washington affiliate, reading those comments, would
have certainly been on notice of the potential for a claim in Washington. Indeed, the January
, 2003 comments argued specifically that Time Warner should be given the benefit of a 10%
discount.! As discussed below, many other documents in Minnesota also publicly disclosed
allegations regarding discounts to Eschelon and McLeod.
Complainants further claim that "Qwest did not file any of these agreements with the
Commission for approval under Section 252" and that "Qwest provided them to the
Commission as confidential documents.Answer at ~ 2. Complainants rely on these
These comments establish beyond any doubt that Time Warner was, as ofthe date of filing, and most certainly much
earlier than that, in full possession of all of the facts necessary to file a complaint for relief.
QWEST'S REPLY TO THE AT&T/TWT
OPPOSITION TO QWEST'S MOTION TO DISMISS
Page 2
Qwest
1600 71JJ Ave" Suite 3206
Seattle, WA 98191
Telephone: [phone]
Facsimile: [phone]
allegations to support their claim that they did not have access to the documents. However
this claim does not bear scrutiny. As to the agreements between Qwest and Eschelon and
Qwest and McLeod, it is true that Qwest initially provided a number of those agreements to the
Commission on a confidential basis. However, a number of agreements were also provided on
a non-confidential basis.
In fact, the issue is not whether agreements were filed under seal or publicly available. The
very heart of Complainants ' case is the claim for a 10% discount off of intrastate services. The
issue then is when AT&T and Time Warner had sufficient knowledge of the facts to enable
them to file a claim requesting 10% refunds.2 Based on the information available in the
Minnesota proceedings3 and the Washington 271 proceeding, as well as the letter from AT&T
to each of the state commissions in 2002 requesting reopening of the record, 4 there can be no
doubt that they had sufficient facts in 2002 to bring a complaint containing the allegations and
claims raised in this docket. However, even if the issue of certain evidence being under seal
were an issue, Complainants have misstated the facts for the reasons set forth herein.
In the Unfiled Agreements case, initiated by Commission complaint in Docket No. UT-
0330 II, Agreements 1-6 on Exhibit A to the Complaint were agreements between Qwest and
2 Complainants' claim for reparations accrued when they discovered (or should by exercise of reasonable diligence
have discovered) their right to apply for relief. See, e., City ofSnohomish v. Seattle-Snohomish Mill Co., Inc.2003 WL
22073066, *4 (Wash. App. Div. 1 Sept. 8,2003) (citing and quoting US. Oil Refining Co. v. State Dep t of Ecology,
Wn.2d 85, 91, 633 P.2d 1329 (1981) and Janicki Logging Constr. Co. v. Schwabe, Williamson Wyatt, P.109 Wn.
App. 655, 659, 37 P.3d 309 (2001)).
The issue of a 10% discount was discussed publicly and at length in the Minnesota proceeding - in parties' comments
on the hearing record, and in the ALl's initial order , to name just a few examples, all of which occurred in 2002. Qwest is
not providing all of these documents so as not to burden this Commission with the hundreds of pages that would entail.
However, a summary list is attached as Attachment 3 hereto, and those documents are available if the Commission should
wish to see them. It is inconceivable that Complainants herein can legitimately claim that they were precluded fiom using
that public information in another jurisdiction.
See Attachment 4 hereto, AT&T's request to reopen the record filed in Colorado on May 13, 2002. AT&T filed
virtually identical motions on May 13 , 2002, in Iowa, Montana, Nebraska, New Mexico, South Dakota, Utah, and
Wyoming. In its Motion herein, Qwest mistakenly stated that AT&T filed such a motion in Washington as well; howeverthat statement appears to be in error, as Qwest has been unable to locate that filing. Notwithstanding that, the issue of the
unfiled agreements was raised in the Washington 271 proceeding, and AT&T was clearly aware ofthe agreements, as it
filed a brief with the Commission on June 7, 2002, describing certain "secret agreements", and asking the Commission to
delay Qwest's 271 application pending an investigation. See, Attachment 5, an excerpt fiom that brief. This clearly
demonstrates AT&T's detailed knowledge of the facts , in 2002, upon which its culTent claim is based.
QWEST'S REPLY TO TIIE AT&T/TWT
OPPOSITION TO QWEST'S MOTION TO DISMISS
Page 3
Qwest
1600 7'" Ave., Suite 3206
Seattle, WA 98191
Telephone: [phone]
Facsimile: [phone]
Eschelon. Each of those agreements had previously been provided to the Commission and the
parties on a non-confidential basis in response to the Commission s Bench Request No. 46 in
Docket Nos. UT -003022 and UT -003040, on April 18, 2002. See, Attachment 6 hereto
Qwest's fIrst response to Bench Request No. 46. Agreement 4 on Exhibit A is the only
Qwest/Eschelon agreement containing an alleged discount or lower rate. This agreement was
thus available to Complainants on a public basis since April 2002 in Washington, and was also
included in the group of eleven that were filed publicly in March 2002 in Minnesota.
Thus, there is irrefutable proof that Complainants had possession of a number of the "unfiled
agreements," including one that contained an alleged discount upon which Complainants base
their current action, in Washington, in April 2002. Yet Complainants continue to maintain that
the statute of limitations did not begin to run until June of 2004, when Staff fIled testimony in
Docket No. UT-033011. Complainants claim, in paragraph 9 of the Answer, that they did not
have knowledge of the Eschelon and McLeod agreements suffIcient to file a complaint until
June 8, 2004, when Staff publicly disclosed the agreements in filed testimony. This claim is
simply preposterous.
As the Commission is well aware, the complaint that initiated Docket No. UT-033011
contained an Exhibit A which listed all of the purported interconnection agreements that were
at issue in the case. At the point at which Complainants received the complaint in Docket No.
UT-033011 , Complainants could have conducted discovery to obtain the referenced
agreements, or could have fIled a public records request to that same end. As the record in that
docket indicates, Complainants did neither. No "extraordinary forces (see, Answer at' 10)
existed that prevented such an action, which any exercise of reasonable diligence would have
produced. In fact, Qwest merely made an informal request to the Commission Staff for copies
of all of the agreements, and they were produced to Qwest immediately. See Attachment 7 to
this reply. Complainants apparently made no effort to obtain the agreements, either through
QWEST'S REPLY TO THE AT&T/TWT
OPPOSITION TO QWEST'S MOTION TO DISMISS
Page 4
Qwest
1600 71h Ave., Suite 3206
Seattle, WA 98191
Telephone: [phone]
Facsimile: [phone]
discovery, informal request, or public records request, even though each avenue would have
been open to them. Complainants, instead, sat on their rights during the pendency of the
proceeding, and by doing so, saw the applicable limitations period pass them by.
The Six-Year Statute of Limitations is not Applicable
In a sort of dying gasp, Complainants reach for the lifeline of a six-year statute of limitations
claiming that their action is, or at least could be, based on breach of contract allegations.
Answer at ~ 13. This contention is not well taken. The Commission has previously found that
its authority to order a refund or reparations is based on RCW 80.04.240.5 This telecom-
specific statute, with a clearly defined limitations period particular to this industry, must
prevail over the general six-year statute of limitations on written contracts.6 Whether the
Commission is enforcing a written contract or ordering reparations for matters not governed by
contract, the Commission s authority to do so is limited to that authority granted under RCW
80.04.240, and the limitations periods contained therein.
Furthermore, though Complainants allege that they could bring a breach of contract claim, and
ask leave to do so, Qwest does not believe that Complainants can make a case that Qwest has
breached a contract. There was never a request to "opt-in" to any other agreement, nor did
Qwest wrongfully refuse such a request. At this point, Complainants could not prove facts
establishing a breach of the parties' interconnection agreements - at most they have the claim
they have brought, a claim for reparations, which is time barred under the statute of limitations.
The Commission should thus conclude that Complainants' claims are barred by operation of
See, Glickv. Verizon Docket No. UT-040535, Order No.3 (January 28 2005),1143. In Glick the Commission
affinned that claims for overcharges or the charging of unreasonable or unlawful rates were governed by the limitations
periods in RCW 80.04.240, and that claims not falling under that provision were governed by the general two-year
limitation period in RCW 4.16.130.
Carlton v. Black (in Re Estate of Black) 155 Wn.2d 152, 164 (2004) ("when more than one statute applies, the
specific statute will supercede the general statute ) (internal citations omitted).
QWEST'S REPLY TO THE AT &TrrWT
OPPOSITION TO QWEST'S MOTION TO DISMISS
Page 5
Qwest
1600 71b Ave., Suite 3206
Seattle, WA 98191
Telephone: [phone]
Facsimile: [phone]
the statute of limitations. As a result, the Commission should dismiss the Complaint with
prejudice.
III.CONCLUSION
As set forth in its Motion, Qwest requests an order of this Commission dismissing
Complainants' Complaint as barred by the statute of limitations, or in the alternative , because
the Commission does not have the authority to grant Complainants' request for monetary
relief.
DATED this 13th day of January, 2006.
QWEST
Lisa A. Ander!BA #13236
Adam L. Sherr, WSBA #25291
1600 7th Avenue, Room 3206
Seattle, WA 98191
Phone: [phone]
QWEST'S REPLY TO THE AT&TfTWT
OPPOSITION TO QWEST'S MOTION TO DISMISS
Page 6
Qwest
1600 71l1 Ave., Suite 3206
Seattle, WA 98191
Terephone: [phone]
Facsimile: [phone]