20100730Amended Petition.pdf

Mary S. Hobson
Attorney & Counselor
999 Main, Suite n03
Boise, ID 83702
208-385-8666
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ZßlßJUL 30 PH 3:13
July 30,2010
VIA HAND DELIVERY
Jean D. Jewell, Secretar
Idaho Public Utilities Commission
472 West Washington
Boise, ID 83702-5983
RE: Docket No. QWE-T-08-04
Dear Ms. Jewell:
Enclosed for fiing with this Commission are an original and seven (7) copies of the
Amended Petition of Qwest Corporation. If you have any questions, please contact me.
Than you for your cooperation in this matter.
Very truly yours,
, l1tvrif/lk~
Mars.4:~
Enclosures
cc Service List
201nJUL 30 PH 3: 13
Mar S. Hobson (ISB. No. 2142)
999 Main, Suite 1103
Boise, ID 83702
Tel: [phone]
mar.hobson(fqwest.com
Adam L. Sherr
Corporate Counsel, Qwest
1600 7th Avenue, Room 1506
Seattle, W A 98191
Tel: [phone]
adam.sherr(fqwest.com
Attorneys for Qwest Corporation
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
In Re WITHDRAWAL of QWEST
COPORATION'S STATEMENT OF
GENERALY AVAILABLE TERMS AND
CONDITIONS
Case No. QWE-T-08-04
AMENDED PETITION of QWEST
CORPORATION
Qwest Corporation ("Qwest"), by and through its undersigned attorneys, petitions
the Idaho Public Utilities Commission ("Commssion") to withdraw its Performance
Assurance Plan (PAP) and replace it with an alterative offering called Qwest
Performance Assurance Plan II (QP AP II) as more fully set out below.
Amended Petition of Qwest Corporation 1
This Amended Petition supersedes the pending portion of Qwests Petition filed
herein on May 2, 2008 in which Qwest sought permission to withdraw its Statement of
Generally Available Terms (SGAT). The Commission granted that portion of Qwests
requested relief in Order No. 30750 dated March 17,2009. In its initial petition Qwest
also requested that the PAP and the Performance Indicator Definitions (PIDs), which are
used in conjunction with the PAP, be removed entirely. This Amended Petition seeks an
Order of this Commission amending the P APand PIDs as set out in detail below and in
Qwests testimony.
INTRODUCTION
1. Qwest is a Colorado corporation whose principal place of business in
Idaho is Boise. Qwest is the successor corporation to U S West Communications, Inc.,
which provided telecommunications serices in Idaho pursuant to Titles 61 and 62, Idaho
Code. Presently Qwest provides retail telecommunications services in Idaho under Title
62, Idaho Code. For convenience, both Qwest and its predecessor shall be refered to as
"Qwest" in these proceedings.
2. Under the federal Telecommunications Act of 1996 ("1996 Act" or "the
Act") Qwest is a Bell Operating Company ("BOC") as defined in 47 U.S.C. § 153 (35)
and operates as an "incumbent local exchange carrer" ("ILEC") as defined in section
251(h) of the 1996 Act. 47 U.S.C. § 251(h).
3. Pursuant to the 1996 Act, ILECs such as Qwest are required to enter into
interconnection agreements with other providers of telecommunications services who
request access to its network, facilities or services. See 47 U.S.C. §§ 251-252.
Amended Petition of Qwest Corporation 2
4. The 1996 Act also provided a means by which BOCs like Qwest could
gain entr into certain telecommunications markets, known as the in-region interLAT A
services markets, from which they had been legally precluded. 47 U.S.C. § 271
Proceedings by which BOCs sought regulatory approval for this market entr
("interLATA freedoms") were termed "271 proceedings" and the path these proceedings
took through state and federal regulatory trbunals is often referred to as "the 271
process." As par of the 271 process, state regulatory bodies such as this Commission
were to consult with the Federal Communications Commission ("FCC") as to whether a
particular BOC had met the standards set out in section 271. 47 U.S.C. § 271 (d) (2) (B)
5. The Idaho Legislature in 1997 enacted Idaho Code § 62-615 (1), which
granted the Commission "full power and authority" to implement the 1996 Act.
JURISDICTION
6. The Commission has jurisdiction over this matter under section 615,
Title 62, ldaho Code.
OWEST'S PIDs and PAP
7. After the passage of the 1996 Act, Qwest in Idaho was actively engaged
in taking all steps necessar to comply with the Act and to successfully complete the
requirements for entr into the in-region, interLATAserice markets through the 271
process.
8. Among these activities, Qwest negotiated numerous interconnection
agreements with competitive local exchange carers (CLECs). Said agreements were
Amended Petition of Qwest Corporation 3
subsequently submitted to the Commission for approval pursuant to section 252( e) of the
1996 Act.
9. On June 6, 2002, the Commission entered its "Final Decision on Qwests
Corporation's Compliance with Section 271" stating that it was prepared, when consulted
by the FCC, to advise that Qwest had adequately addressed the section 271 requirements.
The FCC approved Qwests application for market entr through the 271 process on
December 23, 2002. i
Part One-rigin of the PIDs and PAP
10. At the onset of the 271 process, the focus was on implementing wireline
competition. One critical element of that implementation was assuring the BOCs
provided nondiscriminatory service to the competitors to whom they provided
interconnection and other products and services used in their CLEC operations. In
particular CLECs sought assurance that service quality would be maintained once the
BOCs received 271 approval and re-entered the interLATA service markets.
11. Among the BOCs, Bell Atlantic (now Verizon) was the first to receive 271
approval from the FCC. As a result, the Bell Atlantic application became a blueprint for
all other 271 submissions. In particular Bell Atlantic's extensive, independent third-pary
Operations Support Systems (OSS) testing and voluntary plan to assure service quality
were seen as a useful approach. Included in that approach were:
· Development of clearly defined performance measures and standards; and,
1 Application by Qwest Communications International, Inc. for Authorization to Provide In-
Region, InterLATA Services in the States of Colorado, Idaho, Iowa, Montana, Nebraska, North
Dakota, Utah, Washington and Wyoming, WC Docket No. 02-314, Memorandum Opinion and
Order, 17 FCC Rcd 26303 (2002).
Amended Petition of Qwest Corporation 4
· Adoption of performance assurance measures with substantial penalties
that created a strong financial incentive for Bell Atlantic's post-approval
compliance with the section 271 requirements.
12. As noted, Bell Atlantic's application, including its performance assurance
plan became a blueprint for other BOCs, like Qwest, who were seeking the FCC's
approval under section 271. Therefore, like Bell Atlantic, Qwest submitted to extensive
third-pary testing of its OSS offering and worked with interested paries to develop
performance measures known as Performance Indicator Definitions ("PIDs") that would
be used to provide specific data about Qwests performance. Finally, Qwest voluntarly
put into place a Performance Assurance Plan ("PAP") that applies specific standards to
the performance data tö assure post-approval compliance with section 271 requirements.
13. Based on a snapshot of the industry as BOCs completed their 271
processes, Qwest voluntarily offered the PAP. PAPs were not required under the Act.
Instead, they were considered an anti-backsliding mechanism to assure that the pro-
competitive measures required prior to the BOCs gaining access to the in-region,
interLATA markets were not compromised once interLATA freedoms were attained.
Consequently, PAPs went far beyond what had been considered commercially reasonable
in ordinar business-to-business agreements and required Qwest make payments for
failure to meet PIDs even where CLECs suffered no actual harm and without regard to
the overall service quality provided to CLECs.
Part Two-The PAP Was Never Intended to Be Permanent
14. Durng the workshops and negotiations in the 271 process, it was
anticipated that the PAP would not always be in place. In fact, terms were added to the
Amended Petition of Qwest Corporation 5
Idaho PAP providing for its elimination. By its own ters, the Idaho PAP provides at
Section 16.3:
Qwest wil make the PAP available for CLEC interconnection agreements until
such time as Qwesteliminates its Section 272 affliate. At that time, the
Commission and Qwest shall review the appropriateness of the PAP and whether
its continuation is necessary. . . ." (Emphasis added)
This reference to "Section 272" is to a provision of the 1996 Act. Essentially that section
allowed BOCs to provide in-region,.interLATA telecommunications services through
separate corporate affiliates, if cerain safeguards were in place. 47 U.S.C. § 272(a)(2).
By its own terms, many of the requirements in section 272 expire thee years after a BOC
is authorized (through the 271 process) to provide in-region, interLATA services. 47
U.S.C. § 272(f)(1). As noted above, the FCC granted Qwests section 271 authorization
for Idaho in anorder released on December 23,2002. Therefore, pursuant to section
272(f)(1), the provisions of section 272 (other than section 272(e)) sunset by operation of
law for Qwest in Idaho effective December 23,2005. After that time Qwest was no
longer required to provide its in-region, interLATA services through a section 272
affiliate.2 However, Qwest did not cease using its 272 affiliates to offer its in-region
interLAT A services because if Qwest had offered those servces immediately itself, they
would have been subject to additional FCC regulations until the FCC issued a
forbearance order.
15. On Februar 20,2007, the FCC granted Qwests Petitionfor Forbearance
from Enforcement of the Commission's Dominant Carrier Rules as They Apply after 272
2 See Section 272(j(l) Sunset of the ROC Separate Affliate and Related Requirements, WC
Docket No. 02-112, Memorandum Opinion and Order, 17 FCC Rcd 26869 (2002) (finding that
section 272(f)(1) is best interpreted as providing for a state-by-state sunset).
Amended Petition of Qwest Corporation 6
Sunsets.
3 In connection with this forbearance grant, Qwest provided the FCC with notice
that Qwest had stopped providing in-region, interstate, interLATA interexchange ("IXC
services") through section 272-compliant affiliates as of February 20,2007.
16. Thus, the trggering event contemplated in section 16.3 of the Idaho PAP
occurred as of Februar 20,2007.
Part Three- The PAP Has Accomplished Its Purpose
17. Since the creation of the PAP and continuing through Qwest s successful
271 process and entr into the in-region, interLATA market, Qwest has consistently.
provided excellent, non-discrminatory serice to CLECs. Average Idaho performance
since 2003 has been over 99%, as summarzed below:
Idaho - Percent Items Met Period
PIO Group 2003 2004 2005 2006 2007 2008 2009 Total
Billing (BI)95.83%99.61%99.77%99.99%99.99%99.98%100.00%99.72%
Maintenance & Repair (MR)99.29%99.36%99.55%99.43%99.59%99.61%99.55%99.46%
Ordering & Provisioning
(OP)99.11%98.68%98.67%97.48%98.21%95.95%96.19%98.06%
Pre-order I Order (PO)99.10%99.52%99.32%99.48%98.36%99.22%98.92%99.18%
Grand Total 95.98%99.60%99.77%99.97%99.98%99.97%99.99%99.71%
18. Qwest remains committed to providing excellent service to CLEC
customers. The realties of to day's marketplace dictate that CLEC-related services are a
critical piece of Qwest s ongoing business and playa major role in keeping end users on
the Qwest network, thereby helping to support Qwest's huge financial investment and its
economic future. These business realities constitute a powerful incentive to continue to
3 In this petition Qwest sought relief from FCC requirements that would have made any IXC
services it provided subject to the stringent regulations known as "dominant carrer regulations."
Amended Petition of Qwest Corporation 7
provide CLECs with excellent service as defined under the PIDs and otherwise. In
addition Qwest is well aware that it continues to operate under a federal statutory
requirement to provide non-discriminatory service to CLECs. Qwest service in Idaho has
consistently met that standard and Qwest is fully committed to continuing to do so.
19. Based on the foregoing, Qwest believes it would be consistent with the
history of the PAP, the language of the Plan that was accepted by the FCC and this
Commission, and federal law for the PAP and PIDs to be withdrawn in their entirety,
- allowing Qwest and the CLECs to pursue business-to-business agreements that meet their
ongoing commercial needs. However, based upon the input from CLECs in this and
similar dockets, as well as the comments of the Commission Staff, Qwest is wiling to
continue to voluntarily offer the PAP, with certain modifications and simplifications
descrbed below and in more detail in Qwest s testimony that make operation of the PAP
in the future more efficient and balanced, while preserving the strong financial incentives
considered so important by CLECs and regulators.
Part Four-The PAP and its History Demonstrate it May be Modifed
20. Today, the PAP, if adopted by an individual CLEC, forms a par of the
CLEC's interconnection agreement. Specifically the PAP takes the form of Exhibit B,
which sets forth the measurement definitions and standards (i.e. "the PIDs"), while
Exhibit K sets forth the payment framework. Qwest now seeks to modify Exhibits B and
K of existing interconnection agreements to reflect a more balanced approach that
continues to provide economic incentives to Qwest to help maintain open
telecommunications markets for CLECs. This modification is provided pursuant to
Amended Petition of Qwest Corporation 8
section 16.3 of the current PAP, which perits the Commission and Qwest to have a
proceeding such as this to determine the future of the Plan in existing and futue
interconnection agreements.
21. Given the nature of the PAP and PIDs, and while CLECs provided
comments and input to the Plan, neither exhibit has historically been subject to individual
CLEC negotiations because of Commission acceptance of the Plan and because Qwest is
not capable of managing multiple plans. CLECs either opted in and received the benefit
of the Plan, or believed these exhibits were not needed and did not include them in their
interconnection agreements. If a CLEC opted to include Exhibits B and K, it did not
adopt a static version of the PAP or PIDs. Instead the CLECs are informed and aware
that the PAP and PIDs are subject to futue negotiations and modifications approved by
the Commission, as well as to modifications from changes in law governng the paries'
duties toward each other and submitted to the Commission. For example, the Idaho PAP
and PIDs were modified by the Commission in Case No. QWE-T-03-23 by Order No.
30461.
22.Moreover, CLEC interconnection agreements with Qwest contain
provisions that address the fact that changes in law wil affect obligations under the
agreement. See e.g., Section 2.2 of Qwest 's Negotiations Template. Given that the Idaho
PAPin section 16.3 explicitly sets out the roles of Qwest and the Commission in
determining whether the PAP is necessary after Qwest ceases offerng in-region,
interLATA services through section 272 affliates, the agreements curently containing
the PAP recognize the possibility of a regulatory deterination affecting the continuing
availability or content of the PAP. Furher, in approving Qwests 271 application
Amended Petition of Qwest Corporation 9
supported by a PAP containing the language of section 16.3, the FCC effectively leaves
the matter of changes or termination of the PAP to the Commission and Qwest in the
context of approving interconnection agreements in which the PAP resides.
23. In the following section of this Amended Petition and in Qwest's
testimony, the Company describes a modified version of the PAP that Qwest wil offer
voluntarly to CLECs subject to termination dates and a review provision contained
therein. Qwest' s proposal is contingent upon the Commission entering an order that wil
substitute the modified Plan for the existing PAPin all existing interconnection
agreements in Idaho by operation oflaw. For CLECs that do not curently have the PAP
and for new CLECs, Qwest wil make the modified version of the PAP available in
Qwest's Negotiations Template as an option for their interconnection agreements.
Part Five ----Exhibits Band K Should Be Amended to Streamle the Measurements
and Reward Superior Service Where it is Rendered
24. One of Qwests primary concerns with the curent PAP is its one-sided
approach to applying self-executing consequences to the service received by CLECs.
While every deviation from standard, no matter how minor or isolated generates a
penalty, the curent Plan makes no provision for serice that exceeds standards, even by
substantial, measurable increments. Qwests proposed amended version of the PAP
(hereinafter refered to as "QP AP II") provides essentially the same economic incentives,
i.e., self-executing penalties, provided under the current plan but also offers Qwest the
added incentive of earnng offsetting performance credits against those penalties for
serice that is measurably superior.
Amended Petition of Qwest Corporation 10
25. Qwests testimony filed in conjunction with this Amended Petition details
how performance credits wil be measured and calculated. Essentially this amendment to
the Plan wìl create three categories of service performance: 1) service that meets
standards, which generates neither a penalty or reward; 2) sub-standard ("non-
conforming") service as measured by the PIDs, which under QPAP II, as under the
current plan, produces self-executing penalties payable to CLECs; and 3) superior service
that exceeds standards by a defined, measurable increment and which serves to create
offsets against accrued penalties. The amended PAP which is attached to the testimony
of Michael G. Wiliams as Qwest Exhibit 1 provides that these creçlits wil apply only to
offset accrued penalties within similar areas of services and elements and only within a
single CLEC's operations such that superor service to one CLEC wil not offset sub-
standard service to another.
26. QP AP II, like the current Plan provides economic incentives to Qwest to
provide non-discriminatory serice as required under section 271 of the Act, while
rewarding Qwest for essentially providing its CLEC customers with service that may be,
in many cases, superior to that Qwest provides its own retail customers.
27. QP AP II also streamlines the measurements used to deterine serice
levels and the service/element categories by combining what have proven to be
unnecessar disaggregations into a single measurement, removing measurements that are
included in the PIDS but not in the currentP AP or are no longer material to the purpose
of current PAP, and moving some measurements into categories that continue to track the
information for possible future reinstatement of the measurements but do not impact the
Plan itself. QPAP II also streamlines product categories by combining the reporting for
Amended Petition of Qwest Corporation 11
similar products or processes into one product category and removing products that have
very low activity levels. Qwests testimony wil show that these changes serve to
simplify the Plan and make its operation less burdensome while stil providing the
service-related information that CLECs have told this Commission they value and
covering the vast majority of products and services CLECs purchase from Qwest.
28. Finally QP AP II eliminates the so-called "Tier 2" and minimum payments
featues of the current Plan. Under the curent PAP certain measures did not yield
penalties payable to individual CLECs ("Tier 1 "). Instead, these measures generated
payments to state commissions that are termed "Tier 2" payments. In addition, other
measurements were allowed to generate payments in both Tier 1 and Tier 2. At the time
the PAP was being developed, it was thought Tier 2 payments, and minimum payments
that would essentially "round upward" small Tier 1 payments to single CLECs, would
provide additional economic incentives to Qwest to provide conforming service. Qwest
submits these incentives are no longer useful or necessary and that removal of Tier II and
minimum payments from the PAP wil have no adverse impact on CLECs or the servce
they receive.
WHEREFORE, Qwest respectfully prays for relief as follows:
1. That the Commission enter an order modifying the Qwest PAPas shown
in Qwest Exhibit 1 ("QP AP II") and ordering that current interconnection agreements that
contain the existing PAP be modified by operation of law to contain said modified
QPAP II.
Amended Petition of Qwest Corporation 12
, .
2. That the Commission authorize Qwest to withdraw Exhibits Band K,
which form the only remaining pieces of its Statement of Generally Available Terms
(SGAT), and replace them with QPAP II made available in Qwests Wholesale
Negotiations Template.
3. That the Commission order such other relief as is appropriate in the
circumstances.
Dated this~y of July, 2010.
Respectfully submitted,/n~l!-bf4
Mar S. H~on (ISB. No. 2142)
999 Main. Suite 1103
Boise, ID 83702
Adam L. Sherr
Corporate Counsel, Qwest
1600 7th Avenue, Room 1506
Seattle, W A 98191
Attorneys for Qwest Corporation
Amended Petition of Qwest Corporation 13
CERTIFICATE OF SERVICE
I do hereby certify that a tre and correct copy of the foregoing Amended Petition of
Qwest Corporation was served on the 30th day of July, 2010 on the following individuals:
Jean D. Jewell
WeI don B. Stutzman
Idaho Public Utilities Commssion
472 West Washington Street
P.O. Box 83720
Boise, il 83702
j j ewellG;uc.state.id. us
Weldon. Stutzm(ßJmc.idaho. gov
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Douglas K, Denney
Integra Telecom, Inc.
1201 Lloyd Blvd., Suite 500
Portland, OR 97232
dkdenney(fintegratelecom.com
Michel Singer Nelson
Associate General Counsel
360networks (USA) Inc.
370 Interlocken Blvd., Suite 600
Broomfield, CO 80021
mnelsonG3ß60 .net
Gregory L. Rogers
Senior Corporate Counsel
Level 3 Communcations LLC
1025 Eldorado Boulevard
Broomfeld, CO 80021
greg.rogersCfleve13 .com
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