20080805Response to Staff Motion.pdf

Mar S. Hobson (ISB. No. 2142)
999 Main, Suite 1103
Boise, ID 83702
Tel: [phone]
mary.hobson(fqwest.com
"" i
J ¡
Adam L. Sherr
Corporate Counsel, Qwest
1600 7th Avenue, Room 3206
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
QWEST CORPORATION'S RESPONSE
TO STAFF MOTION TO EXTEND
COMMENT PERIOD
Qwest Corporation ("Qwest"), by and though its attorneys of record, provides the
following Response to the Commission Staff Motion to Extend Comment Period fied
herein on July 7, 2008.
BACKGROUND
On July 7, 2008 the Staff of the Idaho Public Utilities Commission ("Staff') filed
its response to the Notice of Petition and Notice of Modifed Procedure issued by the
Commission in the above-referenced case. The pleading titled Comments of the
Qwest Response to Staff Motion
To Extend Comment Period - 1 -
Commission Staff("Comments") form the basis for Staffs Motion to Extend Comment
Period. Staffs comments focus almost entirely on Qwests voluntar Performance
Assurance Plan ("PAP") and the related Performance Indicator Definitions ("PIDs"),
although Qwests petition to withdraw its Statement of Generally Available Terms
("SGAT") is also before the Commission.
With regard to the PAP, Staff correctly states that paragraph 16.3 of the volunta
plan provides that Qwest wil maintain the plan until such time as it eliminates its Section
272 affliate, which occurred on Februar 20, 20071. Thereafter, as Staff notes, the PAP
provides, "the Commission and Qwest shall review the appropriateness of the PAP and
whether its continuation is necessar."
Although Staff does not explain its reasoning in any detail, Staff recommends that
the Commission, "not grant Qwests request for withdrawal of its SGAT, but instead
extend the comment period in this case until a review of the Performance Measurements
can be completed and an analysis presented to the Commission for its final review and
decision." The "review" to which the Staff refers in this recommendation is a project
conceived by state commission staff members of the informal Regional Oversight
Committee (ROC)2 that wil "evaluate all pedormance measurements and provide a
comprehensive analysis on which measurements should be eliminated, enhanced, or
remain in effect,,3 using a third pary consultant, Libery Consulting. This ROC review is
envisioned as a "multi-state collaborative review,,4 that wil "afford those CLECs that
have limited resources the opportnity to participate in all of Qwest s 14 state regions."s
Staffs comments provide few details concernng its proposed process, but a
single page "Scoping Document" prepared by ROC Staff members and containing six
bulleted paragraphs comprises Staffs Attachment 1. This document iterates ROC
Staff s perspective on the need for a review (essentially that there are PAPs in fourteen
Qwest states that have various differng provisions and timelines for state commission
review), recommends that Libery Consulting be contracted to conduct the review, and
i Qwest Petition, ir 35.
2 The ROC is an informal group of regulators that has no independent regulatory authority and no
jursdiction to compel Qwest or any other par to tae action. Since the ROC was originally created its
focus has changed from issues exclusive to Qwest to an industr focus.3 Comments at 3.
4 ¡d., Attchment 1.
5 ¡d. at3.
Qwest Response to Staff Motion
To Extend Comment Period - 2 -
that the consultant, "also provide draft recommendations as to the curent effectiveness,
value and usefulness of the pedormance plan and PIDS in relation to their intended
purose and function as well as the usefulness of some or the entire plan and PIDS
continuing including possible modifications to such.,,6 The Scoping Document goes on
to suggest that the consultant's "baseline document" could be used by various
commissions in appropriate dockets or "for collaborative discussions between the varous
Commission Staffs, Qwest and the CLECs,,7 Ifthese discussions occur ROC Staff
recommends that Liberty Consulting "facilitate and document the results of such
discussions clearly delineating areas of agreement and issues of dispute along with
supporting positions."g
Staffs recommendation is that the Commission suspend these proceedings for an
indefinite period awaiting either Liberty Consulting's "baseline document" or its
subsequent documentation ofthe hypothetical multi-state, multi-pary "collaborative
discussion(s)." Staff provides no explanation of why Qwest's request to withdraw its
SGAT, as opposed to its PAP, should be tied to the proposed ROC multi-state
collaborative which does not address the SGAT, nor does it explain exactly how the ROC
proposal wil serve this Commission in responding to specific issues raised by Qwest's
petition with regard to the PAPin Idaho.
DISCUSSION
Staff does not dispute that Qwest has eliminated its 272 affiliate, nor does it
dispute that the language of the PAPin section 16.3 governs how the Commission should
approach the issue of elimination of the PAP. However Staff s recommendation as to
how the "review" contemplated in section 16.3 should be conducted seeks to embroil this
Commission in a lengty, expensive "multi-state collaborative" process whose outcome
wil, in all likelihood, have limited relevance to the issues presented by Qwest's petition
in this case. Qwest submits that an Idaho-specific legal and policy review of the PAP is
called for in this docket.
6 !d., Attachment I
7 Id.
SId.
Qwest Response to Staff Motion
To Extend Comment Period - 3 -
1. Qwest Wil Not Partcipate in the Process Outlied in the Scoping Document.
The Scoping Document apparently conceives two possible phases to the "multi-
state collaborative review". As Staffs Comments phrase it, the first is "to evaluate all
pedormance measurements" and provide a "comprehensive analysis" of which
measurements should be retained, eliminated, or changed. Then, once the consultant
has pulled its recommendations together into a "baseline document" there is the
possibilty for a second phase of "collaborative discussions" between Qwest, the
paricipating state commission staff members and CLECs, which is anticipated to yield a
report of the consultant documenting areas of agreement and delineating issues of dispute
"along with supporting positions."
In effect, through the Scoping Document ROC Staff seeks to recreate the process
similar to that adopted by Qwest and seven state commissions to work through the
myrad of section 271 issues eight or more years ago.9 While that collaborative process
worked reasonably well to get through what would have been an otherwise
insurountable volume of regulatory work in simultaneous state commission
proceedings across the region, the process described in the Scoping Document is not
appropriate for "review" ofthe Idaho PAP. Not only would such a process be
inordinately expensive and time consuming, but it is a very poor alternative for the
review provided under PAP section 16.3, which is required here.
Since Qwest wil not paricipate in the process outlined in the ROC Scoping
Document, there is no possibilty that the "collaborative discussions" phase of the ROC
multi-state proposal wil yield any meaningful agreement regarding Qwest's PAPin
Idaho. Therefore Staffs recommendation amounts to nothing more than a suggestion
that the Commission delay indefinitely the meaningful legal and policy review requested
by Qwest in its petition while Staff paricipates in a lengthy and expensive analysis of
each pedormance measure. There is nothing in PAP paragraph 16.3 that suggests that
review of the performance measures themselves is contemplated or that a collaborative
process is required. And, while the CLECs that chose to file comments in this docket
have expressed their preference that the PAP remains in effect, none suggested that a
9 See Qwest's Petition, ir 9.
Qwest Response to Staff Motion
To Extend Comment Perod - 4 -
detailed review of individual pedormance measures is desired. Qwest respectfully
requests that Staffs motion be denied and that the Commission tu its attention to an
Idaho-specific review of the PAP under section 16.3.
2. This Commission Should Look to PAP Section 16.3 for Guidance as to the Kid of
Review Required.
Section 16.3 requires that Qwest and the Commission paricipate in a review of
the "appropriateness" of the PAP and whether "its continuation is necessary" before the
PAP is rescinded. As noted above, the mismatch between a section i 6.3 review and the
process recommended by Staff is obvious. Section 16.3 makes no mention of a
comprehensive analysis of each individual performance measure. Even more obviously
section 16.3 does not contemplate that this Commission wil receive the views of up to
thirteen other state staffs, or of CLECs who did not choose to intervene in Idaho.
Qwest's Petition outlines in detail the origin of the PAPin Idaho. As stated there
it came about as Qwest and the Federal Communications Commission (FCC) cast about
looking for the blueprint that could be adopted by Bell Operating Companes (BOCs) for
their filings to obtain approval to enter the interstate long distance market under section
271 of the Federal ActIO. At the time that the PAP was offered in Idaho, Qwest made it
clear that it was offering the PAP voluntarly and for a limited time. It is Qwest's
position that it is not now legally required to continue to offer the PAP.
Staff does not comment on ths key Qwest position. Instead it simply
recommends that the Commission indefinitely delay Qwest's request for meaningful
review pending its participation in the proposed ROC multi-state process. For that
process to be even marginally relevant to this case, however, it must be assumed that the
PAP (at least in some form) is legally required 11 and, further that it is best to obtain an
outside consultant's opinion on what details it should include. On the other hand if the
10 See Id., irir4, 7, 29-31
11 The other possible assumption that could have supported Staffs recommendation,
i.e., that Qwest would voluntarly agree to the multi-state negotiation session descrbed in
the Scoping Document involving state commission staff members and CLEC customers
is not viable in light of Qwest' s decision not to paricipate in the process outlined in the
Scoping Document.
Qwest Response to Staff Motion
To Extend Comment Period - 5 -
Commission were to conclude, as Qwest has done, that Qwest is not required to continue
to offer the PAP, the consultant's conclusions about the effectiveness of individual
pedormance measures are neither relevant nor usefuL.
Qwest submits that this Commission should engage in an Idaho-specific review of
the Idaho PAPas contemplated under section 16.3 looking first at the question whether
there is a legal requirement that Qwest continue to offer the PAP. Assuming that it
concludes that Qwest is not required to offer the PAP, the Commission could then turn its
attention to any policy issues that underlie this discussion. For example, to the extent
that the comments of the CLECs in this docket raise issues about their remedies should
Qwest fail to continue to provide the level of serice to wholesale customers that is
required by law, the Commission's role in reviewing legislative policy and managing
competing policy objectives could be called in to play. Qwest urges the Commission to
reject the notion created by the CLECs that the only possible means of assuring Qwest
continues to comply with its obligations is to subject Qwest to the burden of hundreds of
individual performance measures and the liquidated damages provisions that make up the
PAP.
3. Qwests Procedural Recommendations
Qwest recommends that the Commission deny Staffs motion in so far as it
contemplates delaying this docket while it paricipates in the proposed multi-state process
described in the ROC StaffScoping document. Consistent with Qwest's concurent
Motion for Permission to File Responsive Comments Qwest asks that the Commission
grant it an opportnity to respond to the comments fied by the intervenors in this docket
concerning the Idaho SGAT and PAP. However, to the extent the issues raised in
interenor comments go beyond the legal and policy review requested by Qwest, they
should be held for future consideration pending the outcome of the legal and policy
review. Accordingly, Qwest proposes to file said responsive comments forty-two days
from the date hereof.
Thereafter, Qwest recommends that the Commission enterain oral argument on
the legal issues presented by Qwest's petition. Finally, to the extent issues remain that
Qwest Response to Staff Motion
To Extend Comment Period - 6 -
require briefing or further input for the Commssion's consideration, Qwest recommends
that the Commission then schedule a prehearing conference to develop a procedural
schedule suitable for addressing those issues.
Dated this 4th day of August, 2008.
Respectfully submitted,
~t/i/ S' . 9'
Mar S. . obson (ISB. No. 2142)
999 Main. Suite 1103
Boise, ID 83702
Adam L. Sher
Corporate Counsel, Qwest
1600 7th Avenue, Room 3206
Seattle, W A 98191
Attorneys for Qwest Corporation
Qwest Response to Staff Motion
To Extend Comment Perod - 7 -
CERTIFICATE OF SERVICE
I do hereby certify that a tre and correct copy of the foregoing Response to Staff
Motion to Extend Comment Period was served on the 4th day of August, 2008 on the
following individuals:
Jean D. Jewell
Weldon B. Stutzmn
Idaho Public Utilties Commssion
472 West Washington Street
P.O. Box 83720
Boise, il 83702
j j ewelltiuc. state.id. us
i Hand Delivery
U. S. Mail
Overnght Delivery
Facsimle
Email
Douglas K, Denney
Integra Telecom
730 Second Avenue S., Suite 900
Minneapolis, MN 55402
dkdeney(fintegratelecom.com
Michel Singer Nelson
Associate General Counsel
360networks (USA) Inc.
867 Coal Creek Circle, Suite 160
Louisvile, CO 80027
mnelson(f360 . net
Hand DeliveryiU. S. Mail
Overnght Delivery
FacsimileiEmail
Hand DeliveryiU. S. Mail
Overnght Delivery
FacsimileiEmail
Hand Deliveryiu. S. Mail
Overnght Delivery
Facsimile--Email
Gregory L. Rogers
Senior Corporate Counsel
Level 3 Communcations LLC
1025 Eldorado Boulevard
Broomfeld, CO 80021
greg.rogers(ileve13 .com
Mar S. H bson
Attorney or Qwest Corporation
Qwest Response to Staff Motion
To Extend Comment Period - 8 -