20080915Responsive Comments.pdf

..
Mar S. Hobson
Attorney & Counselor
999 Main, Suite n03
Boise, ID 83702
208-385-8666
September 15,2008
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:
REceIVED
2f SEP IS PH 3= "3
IDAHO PUf3LJCUTILITIES COMMISSJON
Enclosed for filing with this Commission are an original and seven (7) copies of QWEST
CORPORATION'S RESPONSIVE COMMENTS. If you have any questions, please
contact me. Than you for your cooperation in this matter.
Very trl y yours,
ÁAÃVh/J&
~~s6fobson
Enclosures
cc Service List
.
-"Ù'~"1ú"
Mary S. Hobson (ISH. No. 2142)
999 Main, Suite 1103
Boise, ID 83702
Tel: [phone]
mar.hobson(fgwest.com
RECË1VEO
Zf8 SEP , 5 PHs: 43
IDAHO PUBLICUTILITIES COMMISSION
Adam L. Sherr
Corporate Counsel, Qwest
1600 7th Avenue, Room 3206
Seattle, WA 98191
Tel: [phone]
adam.sherr(fgwest.com
Attorneys for Qwest Corporation
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
In Re WITHDRAWAL of QWEST
COPORATION'S STATEMENT OF
GENERAL y AVAILABLE TERMS AND
CONDITIONS
Case No. QWE-T-08-04
QWEST CORPORATION'S RESPONSIVE
COMMENTS
In its Petition fied May 2, 2008, Qwest seeks to withdraw its Statement of
Generally Available Terms and Conditions (SGAT) and requests a Commission
determination that the Pedormance Indicator Definitions (Pils) and Performance
Assurance Plan (PAP), voluntarly offered by Qwest as Exhbits Band K of the SGAT,
are no longer necessar and can be removed. Although Qwest submits there is no legal
requirement for either the SGAT or the PAP and Pils, should the Commission disagree
with regard to the PAP and Pils, Qwest could implement such a decision by maintaining
the availability of the PIDs and PAP though its Negotiations Template and withdrawing
Qwest Corporation's Responsive Comments - 1 -
.
the SGAT, or by other means as directed by the Commission. Because the SGAT on the
one hand, and the PIDs and PAP, on the other, have different origins and puroses, and
because the Staff and Interenors have raised different concerns with regard to these
separate offerngs, Qwest wil address these topics separately in the Comments that
follow.
I. Qwest Is Entitled to Withdraw Its SGAT
INTRODUCTION
In their comments Interenors make several allegations designed to obscure the
basic question that is before this Commission, i.e., whether or not Qwest is legally
required to continue to offer a Statement of General Available Terms (SGAT). The
answer to this basic question is simply and clearly "no." Qwests position is supported
by the unequivocal language of the federal Telecommunications Act of 1996 ("1996 Act"
or "the Act") and interpretative decisions from the Federal Communcations Commission
("FCC") and the courts.
The 1996 Act contains a comprehensive regulatory scheme designed to facilitate
the entr of other telecommunications companes into local markets. This legislation
required that the incumbent local exchange carer ("ILEC") enter into interconnection
agreements ("I CAs") with telecommunications carers ("CLECs") that seek to compete
in the ILEC's local market.l There is an essential difference between an ICA, which is
negotiated by the paries, eventually agreed upon and documented in a signed agreement
under section 252 of the Act, and an SGAT. An SGAT is merely an offer, i.e., a staring
place for negotiations. It is through interconnection agreements, not the SGAT, that
Qwest opens its network to interconnection and use by competitors as mandated in the
1996 Act. And, it is these individual agreements, not the SGAT, that govern the
relationship between Qwest and each competitor.
Qwest discontinued use of its Idaho SGAT in August 2004. Today the SGAT is
badly outdated, as evidenced by the fact that it does not incorporate key terms that have
evolved since the original SGAT was fied over eight (8) years ago and has not been
revised in more than six years. The SGA T does not represent a practical offering at this
time.
i AT&T Communications of the Southern States v. BellSouth Telecommunications Inc. et aL. 229 F.3d 457
Qwest Corporation's Responsive Comments - 2 -
i
Nonetheless competition has grown in Idaho in the interening years. Since
Qwest discontinued use of the SGAT as the basis for its ICA negotiations, thirty (30) new
agreements have been executed and approved in Idaho, bringing the total number of ICAs
in effect in Idaho to sixty-three (63). Durng that same time, no CLEC has complained to
the Commission regarding the absence ofthe SGAT. Withdrawing the SGAT wil have
no effect on competition in Idaho.
A. Interconnection Agreements, Not SGATs, Define the ILECs' Obligations
to Competitors.
The Act imposes the duty on both ILECs and CLECs "to negotiate in good faith"
the paricular terms and conditions of agreements to fulfill the duties descrbed in the
1996 Act. 47 U.S.c. §251 (c) (1). Ifthe paries fail to reach agreement, section 252 of the
Act authorizes the state utility commission to resolve disputed issues through compulsory
arbitration. ¡d. at §252(c)(1). The resulting agreement, whether arrved at through
negotiation or arbitration by the state commission, must be submitted to the state
commission for approval. ¡d. at §252(e).
This process of negotiation, resolution and approval can, and does, take place
without reference to any SGAT. Indeed, because the SGAT does not represent the
current state of the law and practice with regard to ILEC/CLEC ters and conditions, it
has little use in negotiations of agreements. Withdrawal of the Idaho SGAT wil have no
bearng on how ICAs are negotiated or approved as evidenced by the recent Idaho history
in which numerous agreements were executed and approved without use of the SGAT.
1. Nothing in the Act requires Qwest to offer or maintain an SGAT in
connection with its obligations under sections 251 or 252.
The SGAT concept is referenced in section 252 (f) of the Act. This section,
which is written in permissive rather than mandatory terms, provides that an ILEC "may
prepare and file with the state commission a statement of the ters and conditions that
such company generally offers within that state to comply with the requirements of
section 251. " The 1996 Act contains no requirement that Qwest either create or maintain
an SGAT. Moreover, the Act makes clear that the ILEC's choice to offer an SGAT does
Qwest Corporation's Responsive Comments - 3 -
i
not relieve an ILEC's "duty to negotiate the terms and conditions of an agreement under
section 251." ¡d. at § 252 (/(5). That responsibility to negotiate in good faith with any
CLEC that seeks an ICA remains the central obligation of the Act. An SGAT offers, at
best, an optional tool for negotiating those agreements.
In Qwest's case, the SGAT served as a convenient repository for ICA language
that was being negotiated in the 271 collaborative workshop process. See Qwest Petition,
~ 9. The SGAT provided a single, common reference for the output of the workshops
with CLECs and state commissions capturing language that had, at the time, been
deemed compliant with the 1996 Act's requirements. ¡d. However, in the years following
the completion of the workshops the law and industr practice have changed so
dramatically the SGAT no longer reflects curent offerings or agreements that are now
being negotiated and approved. The SGAT has simply outlived its original purose.
For a time the SGAT also sered as Qwest'stemplate agreement. ¡d. at ~~ 11-14.
However, since August 2004, Qwest has not offered the SGAT as an option for
interconnection agreements or as a staring point for negotiations with CLECs in Idaho.
The SGAT has been replaced for ths purose with the Qwest Negotiations Template,
which, as wil be discussed in detail below has many similarties to (as well as important
differences from) the SGAT. Most important, however, since 2004 not one of the ICAs
approved in Idaho has been based on the SGAT.2
2. Qwest Did Not Rely on Its SGAT to Obtain Freedom to Enter the
InterLATA Market.
Despite the utility of the SGAT as a reference for the provisions incorporated
durng the collaborative workshop phase of the 271 process, the SGAT itself was not the
basis for Qwest's successful multi-state section 271 application to the FCC. The 1996
Act provides two paths by which ILECs could seek approval to enter new markets. The
so-called "Track A" approach requires the ILEC to show it has one or more binding
agreements approved under section 252 and specifyng the terms and conditions under
which it is providing access and interconnection to its network facilities to a competitor.
47 Us.c. § 271 (c)(1)(A). \'Track B" peritted an ILEC to rely on an SGAT rather than
2 See section B.1. infa.
Qwest Corporation's Responsive Comments - 4-
binding ICAs but only if no competitor requested an interconnection agreement for 10
months after the date of the enactment ofthe 1996 Act. Id. at 271 (c)(l)(B). Apparently
Track B was included in the Act to be to allow ILECs the opportnity to gain 271
authority where no competitor requested interconnection. However, where even one
competitor sought interconnection, Track B was no longer an option for the ILEC and it
was required to prove it had met the market-opening requirements of the Act through the
provisions of binding interconnection agreements that had been approved by the state
commission.
Qwest did not seek 271 approval in Idaho under Track B, but rather fied under
Track A. On April 19, 2002, this Commission issued its decision on Qwest's compliance
with the Track A, finding 'ihat Qwest satisfies the Track A requirements." Idaho PUC
Decision Regarding TrackA, Public Interest and 272 at 7. The FCC, in its Memorandum
and Order approving Qwests 271 application stated, "We conclude, as did the state
commissions, that Qwest satisfies the requirements of Track A." Paragraph 21, FCC 02-
332, adopted December 20, 2002. It was the binding ICAs negotiated between Qwest
and individual CLECs that provided the basis for the FCC to allow Qwest in enter the
long distance market.
B. Qwest Has FuIrlled Its Duty Under Section 251(c)(1) to Negotiate in Good
Faith Since It Has Stopped Offering Its SGAT.
Section 251 of the 1996 Act requires that Qwest enter into interconnection
agreements with other providers of telecommunications serces who request access to its
network, facilities or serices. However, neither section 251 nor any section of the Act
requires that an SGAT playa par in these negotiations.
1. CLECs in Idaho have successfully negotiated numerous ICAs without
theSGAT.
The experience in Idaho over the last four years demonstrates the success of the
negotiation process without the SGAT. The SGAT has not been offered by Qwest and
has not been available for opt-in as an ICA since August 2004. It is significant to note
that during this four-year period since August 2004, no CLEC has found it necessary to
complain to the Commission that Qwest no longer offered the SGAT as its staring point
Qwest Corporation's Responsive Comments - 5 -
for ICA negotiations. Apparently the CLECs who have executed agreements in Idaho
since August 2004 have found Qwest's approach to negotiations under section 251
acceptable.
This impressive lack of concer on the par of CLECs may be attrbutable to the
fact that in lieu of the SGAT, Qwest maintains a Negotiations Template that represents
Qwest's initial offer ofterms and conditions for a new ICA Contrar to the impression
that may be created by the comments of the Intervenors, the Template does not represent
some radical depare from the Idaho SGAT. Instead, the Template has the SGAT as its
base, but reflects the current state of the law based on such developments as the FCC's
TRRO decision,3 and has been modified to provide more consistent language across
Qwest's 14 states. In addition, Qwest wil, on request, provide up to three recently
executed and approved ICAs for the relevant state for use as a staring point for
negotiations.
Since the 1996 Act was enacted a total of sixty-three (63) wireline ICAs have
been approved in Idaho. Of those 63,34 have been approved since Qwest stopped
offerng the SGAT in August 2004. Between September 2004 and April 2005, four (4)
agreements were executed and approved in Idaho using the TRO-USTAII Negotiations
Template--a template that pre-dated the Qwest Negotiations Template. Since May 2005
thirty (30)4 more ICAs were negotiated and approved in Idaho. Of those 30, eighteen
(18) executed the Qwest Negotiations Template without substantive modifications, one
(1) adopted an underlying CLEC negotiated agreement that was consistent with the
changes made in federal law by the FCC's TRO and TRRO decisions; and the remaining
eleven (11) agreements were reached either starting with Qwest's Negotiations Template
and adding mutually negotiated language or by adopting an older agreement that was
based on a prior template and updated with a TRRO-compliant amendment. In addition
there are presently six (6) pending ICAs awaiting Commission approval. Allofthese
pending ICAs are based on the Qwest Negotiations Template.
3 Trienal Review Remand Order ("TRRO"), In the Matter of Review of Unbundled Access to Network
Elements, Review of Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers, CC
Docket No. 01-338, WC Docket No 04-313 (FCC reI. Februar, 2005). See also IPUC Docket No. QWE-
T-08-07.4 Please note, ths number represents the current total of approved Idao ICAs since May 2005 and updates
the total of seventeen (17) that was contained in Qwests Petition at ii 14.
Qwest Corporation's Responsive Comments - 6-
Given this experience with interconnection agreements in Idaho, it is evident that
Qwest is meeting its obligation to negotiate interconnection agreements with those
wishing to interconnect. The fact that Qwest has negotiated multiple interconnection
agreements in Idaho since August 2004 demonstrates that Qwest continues to meet its
section 251 requirements.
2. Withdrawal of the SGAT in Idaho does not change the balance of
power in QwestlCLEC ICA negotiations.
Some of the comments of the Intervenors appear designed to evoke a concer
that, without the SGAT, CLECs wil be put at a disadvantage when negotiating their
futue ICAs.5 This is concern is unfounded and its expression in the Interenor
comments misrepresents the nature of the negotiations process as it has played out in
Idaho and other Qwest states.
Intervenors attempt to show that withdrawal of the SGAT deprives them of
something valuable, by making much of the origin of the language contained in the
SGAT, i.e., that it was developed through multi-party workshops. While Qwest does not
dispute this history (See Qwest Petition, ~~ 9-10), it has no bearing on the issue in this
case. Missing from the Interenors' analysis is any indication that the absence of the
SGAT affects their ability to negotiate ICA language that protects their interests.
As already discussed, Qwest's Negotiation Template includes much ofthe
original SGAT. But, where language that a CLEC finds helpful has been removed or
changed in the Template, nothing prevents the CLEC from offering diferent language as
its negotiation position on any given point. The process created under the 1996 Act
contemplates that the paries wil negotiate an agreement that suits their particular needs.
Where Qwest and the CLECs can negotiate resolution of any disagreement over language
issues, the Act's vision that the paries wil negotiate an agreement govering their
business relationship is fulfilled. To the extent agreement is not reached, the Act
provides for compulsory arbitration before the state commissions to resolve the dispute in
advance of the agreement being finalized.
5 See e.g., Comments ofIntegra Telecom and P AETEC ("Integra comments") at 1.
Qwest Corporation's Responsive Comments - 7 -
The fact that this Commission has had no Qwest/CLEC arbitration cases go to
hearing in the four years since the SGAT has ceased being used demonstrates the process
is working as it should. If the SGAT èontained something valuable that CLECs could not
obtain through negotiations, the Commission would have heard about it. Since it has not,
the Commission can take comfort that the SGAT has not been missed. Further, if in
future CLECs are not satisfied, the Commission retains the authority to arbitrate ICA
language.
Finally, the value of the SGAT today can be put in perspective by looking at it
light of current law. If the Idaho SGAT were to come before the Commission for
approval today, the Commission would be obliged to reject it under section 252(f)(2) as
not complying with section 251 and the applicable regulations. In the years since the
SGAT was created there have been several materal modifications to the law that effect
numerous provisions of the SGAT. While Intervenors suggest6 that Qwest should have
been required to update it, such a course would have resulted in a colossal waste of
resources in light of the fact that there have been no instances in which CLECs have
come to this Commission requesting arbitration of disputed language in the context of the
ICAs they have negotiated to govern their business relationship with Qwest. The regular
updating that the Intervenors tacitly admit would be required to bring the SGAT into
conformance with the law would have been an irrelevant and burdensome exercise.
C. By allowig Qwest to withdraw its SGAT the Commssion is not
forfeiting meaningful oversight under the 1996 Act.
The Interenors' comments suggest that withdrawal of the SGAT wil somehow
deprive the Commission of its authority. This is simply not the case.
1. Commission approval of SGAT language is an abstraction that serves
no useful purpose.
Although the Intervenors point to the Commission's approval ofSGAT language
as a reason to preserve it 7 this featue of the SGA T does not convey the level of oversight
suggested by CLECs. The reality is that in the past this Commssion did not undertake an
independent review of the SGAT language, nor did it reach a decision as to whether any
6 Integra comments at 10.
7 See Id. at 7.
Qwest Corporation's Responsive Comments - 8 -
given SGAT paragraph or revision complied with the law. Instead this Commission,
quite correctly, exercised its option under section 252(f)(3)(B) of the Act to simply allow
the language to go into effect 60 days after it was filed.8
The irony ofthe Interenors' arguent is that if the Commission were to rule in
their favor and require Qwest to maintain and update its SGAT in lieu of its more flexible
Negotiations Template, CLECs would face an evolving SGAT that would reflect Qwest's
positions that had been approved by the Commission either actively or under section 252
(f)(3)(B). The Intervenors' only alternative to negotiations starting with Qwest's pre-
approved SGAT language would be to intervene in an Idaho docket each time new SGAT
language was proposed by Qwest. Such an alternative would clearly be more
burdensome to CLECs, Qwest and the Commission than postponing the disputes, if any,
until an actual interconnection agreement provision was being negotiated.
Piecemeal and continuous updates to the SGAT to reflect changing law and
industr practices involve a sizeable commitment of resources for Qwest and the
Commission. Should CLECs choose to interene and dispute proposed SGAT language
in these update proceedings, the resources required of Qwest, the Commission and
CLECs would be greatly increased. It is infinitely more effcient to take up any CLEC
objection to Qwest proposed ICA language in an arbitration. The advantage of deciding
ICA language disputes in arbitration is the decision is made in the context of an actual
commercial dispute between competitors. Engaging in litigation of hypothetical issues in
the context of an SGAT does nothing to benefit the paries or the state of competition in
Idaho. Issues litigated in an SGAT docket may be of no interest to a CLEC actually
competing in the market because each CLEC has its own specific business needs that are
ultimately negotiated and/or arbitrated in the context of their individual ICA negotiations.
The fact that there have been no disputes brought to arbitration in Idaho in recent years
shows that the process is working effciently. On the other hand, ifregular SGAT
updates had been made over the last eight years since the SGAT was filed, a huge
investment of time and resources would have been wasted and no objective benefit
achieved.
8 See IPUC dockets USW-T-0015 and QWE-T-03-24.
Qwest Corporation's Responsive Comments - 9-
More importantly, whether an approved SGAT exists has no bearing on whether
ICAs are actually reached in today's competitive environment. CLECs are not required
to accept SGAT language without negotiations and, if necessary, arbitration, under
section 252. See 47 Us.c. § 252 (a)-(c). And the 1996 Act makes clear that Qwest
continues to have the duty (and the right) to negotiate the pariculars of an ICA with any
CLEC that requests an ICA under section 251. See Id. § 252 (/(5). Hence the
Intervenors' claim that the Commission must continue to "approve" SGAT language to
facilitate the successful ICA negotiations finds no support in the law or the practice that
has unfolded in Idaho over the last four years.
2. The Eschelon arbitrations ilustrate the reality of ICA negotiations.
Integra's comments concering the Eschelon arbitrations,9 rather than supporting
the Intervenors' position that SGATs are necessar, actually demonstrate how irrelevant
SGATs are to ICA negotiations in the present day. No one suggests that the Eschelon
arbitrations arose because Eschelon wished to adopt the SGAT and was refused. Instead
both the.CLEC and Qwest proposed language each thought should be included in the
ICA Where the parties could not agree, the disputed language issues were put before the
commissions in several states in the arbitration process.
In the six state arbitrations between Eschelon and Qwest, Qwest proposed
language for some provisions that was not in the Negotiations Template or the SGAT.
Likewise Eschelon proposed language that was not in the Template or the SGAT. The
commissions sided with Eschelon on some issues and with Qwest on others.
Furtherore, the six state commissions did not reach the same conclusion on each point
of dispute.
Whle Qwest disagrees with the Intervenor claim that the commissions favored
Eschelon's positions more often, that is beside the point. What is important is that
neither the SGAT, the Negotiations Template, nor any single approved ICA fully
captured what the two parties, negotiating in good faith, felt was important for their
agreement. Consequently, arbitration as provided under the 1996 Act was required to
finalize the paries' agreements. The presence an SGAT in each of those six jursdictions
9 See Integra comments at 7.
Qwest Corporation's Responsive Comments - 10-
did not prevent the protracted arbitration proceedings that followed because the issues
raised simply were not resolved in that document.
3. Qwest's Negotiations Template is simply an offer that neither binds
CLECs nor deprives the Commssion of its oversight.
The Interenors have stated the concern that by withdrawing the SGAT Qwest is
attempting to elevate its ''unilateral negotiations positions"io to something authorized by
the Commission. II This concer is unfounded. Qwest has not, and wil not, argue that its
Negotiations Template has been approved by any commission. Of course numerous
ICAs in Idaho and across Qwest tertory that are based on the Template have been
approved.
Intervenors also state that Qwest's template proposals are "not accountable to
anyone but Qwest for their fairness or competitive neutrality.,,12 This goes too far.
Qwest's Template is offered as a baseline agreement for negotiations. It is designed to
provide consistent language across states. However, where state-specific language is
required, Qwest indicates in the Template that ordered language from that state wil be
substituted. For several reasons it is not correct that only Qwest is accountable for the
"fairness and competitive neutrality" of its Template.
First, this statement assumes that the CLECs have no role in protecting their own
interests in the negotiations process-a false assumption that also appears to attack the
competence of the many CLECs who have negotiated agreements based on the Template.
Second, and equally important, it overlooks the state commissions' key roles under the
1996 Act's section 252 to act as arbitrator of disputes and to approve ever
interconnection agreement, whether adopted by negotiation or arbitration. See 47 US.c.
§ 252 (e). As noted in section B.l above, 18 ICAs that executed the Qwest Negotiations
Template without substantive changes have been approved by this Commission. In each
case Qwest was accountable to the CLEC in the negotiations process and to the
Commission under section 252.
10 Integra comments at I
11 Id. at 9
12 Id. at.7
Qwest Corporation's Responsive Comments - 11 -
Withdrawal of the SGAT in no way impacts or diminishes this Commission's role
in approving the terms and conditións of section 252 agreements. The Commission may
reject an agreement adopted by negotiations if it finds: (1) the agreement discrminates
against a telecommuncations carer not a pary to the agreement; or (2) implementation
of the agreement is not consistent with the public interest, convenience and necessity. 47
U. C. S. § 252(e)(2)(A). While this review of final agreements may be limited, it is
appropriate since the agreement before the Commission for approval under section 252(e)
has either been the product of mutually satisfactory negotiations or of the arbitration
process. The Commission oversight provided in section 252 (e) serves to protect non-
paries and ensure competitive neutrality. These protections are in no way diminished by
the withdrawal of the SGAT.
Ultimately, Qwest Template language undergoes several levels of review and
accountability, first by the negotiating CLECs and then the Commission. If CLECs are
not satisfied with the language, they can negotiate or arbitrate. If arbitration takes place,
the Commission wil deterine which of the competing proposals wil be adopted. If the
CLEC and Qwest agree on Template language for ICA without arbitration, the
Commission wil stil exercise its authority under section 252(e) to determine whether the
language is discriminatory or inconsistent with the public interest. Once a CLEC-specific
interconnection agreement is approved it is only that agreement that govers the
relationship between Qwest and the CLEC. An existing SGAT does not alter the ters
and conditions of the ICA and the absence of an SGAT does not diminish the process
available to all CLECs to negotiate an ICA that meets their needs and that overseen by
the Commission in the maner prescrbed by the 1996 Act.
CONCLUSION: SGAT
Qwest is under no legal obligation to provide an SGAT. Meanwhile the
experence of the Qwest/CLEC negotiations over the last four years demonstrates that the
SGAT has not been missed by those seeking to interconnect and operate as competing
carrers. Qwest respectfully requests that the Commission grant its petition to withdraw
the SGAT.
Qwest Corporation's Responsive Comments - 12 -
II. Qwest Is Entitled To Withdraw The PAP And PIDs.
INTRODUCTION
A major goal of the 1996 Act was the implementation of wire line competition.
To achieve this goal, it was necessar to ensure that the market would remain open to
competition once the BOCS13 received approval to enter into the long distance market.
An important element was the assurance of nondiscriminatory wholesale service quality.
Against this backdrop, and as par of its section 27 1 application process, Qwest
voluntarily offered to place a Performance Assurance Plan ("PAP") into its
interconnection agreements. The PAP uses specific performance measures known as
Performance Indicator Definitions ("PIDs"). Based on Qwest's performance against the
PIDs, the PAP requires Qwest to pay pre-determined penalties to both CLECs ("Tier 1
Payments") and to a state fud administered by the Commission ("Tier 2 Payments").
The goal of the PAP and PID framework was to prevent '~acksliding." In other words,
the payments were designed as a disincentive to prevent Qwest from providing a
discriminatory advantage to its own retail operations at the expense of the CLECs in the
years immediately following Qwest's entry into the long distance market. The payments
were intended to be both punitive in nature (Tier 2 Payments) and to represent what the
parties believed in 2002 might approximate the har to CLECs if Qwest were to
backslide (Tier 1 Payments). Today, however, they now bear no relation to any actual
damages or competitive har suffered by CLECs, to the extent any such damage or har
even exists.
Qwest's PAPs have never been required under the Act or any other applicable
law. Instead, they were purely voluntar, offered to provide assurances against the
"backsliding" concern described above. In 2002, when Qwest originally offered the
PAPs, the competitive climate was uncertain and there was significant apprehension that
once the BOCs entered the long distance market, they would revert to perceived
discriminatory and monopolistic practices. In the past six years, however, these fears
have not played out. In fact, just the opposite is tre - discrimination has not occured
13 The term Bell Operatig Companies ("BOCs") refers to a sub-group of incumbent local exchange
carers ("ILECs") that include Qwest. See Qwest Petition at iiii 2-4.
Qwest Corporation's Responsive Comments - 13-
and CLECs purchasing wholesale serices have become a significant source of revenue
to Qwest in light of continuing line loss resulting from technologies such as wireless and
cable. Market forces now require the company to provide quality wholesale servce
inasmuch as the CLEC business represents an important stream of income to Qwest.
In 2002, with the uncertainty as to how the competitive market would play out,
Qwest and the Commission agreed that the PAP was not only voluntar, but it was
temporar as welL. Along those lines, the Commission and Qwest envisioned that they
would convene to review the landscape in several years' time to determine whether the
PAP was stil necessar or relevant in the post-271 climate. That is the purose of
Qwest's instant Petition. Today, six years after Qwest entered the long distance market,
not only has discrimination never materialized, but wholesale serice quality generally
remains at levels equal or above that provided to Qwests retail customers. Not only is
the PAP no longer necessar to prevent backsliding, but it imposes significant operational
and process costs on Qwest and mandates self-executing payments without any showing
of corresponding har to the CLECs. Accordingly, the PAP has served its purose and
outlived its usefulness.
For these reasons, Qwest respectfully requests that the Commission find the PAP
and PID framework unnecessar and perit Qwest to take the appropriate steps to
discontinue it on a going forward basis.
A. The Act Does Not Require Qwest to Offer the PAP and PIDs.
The PAP was a voluntary offerng made by Qwest to provide assurances against
backsliding in the wake of Qwest' s entry into the long distance market. For this reason,
Qwest has no obligation to continue to offer the PAPin new interconnection agreements
going forward. The FCC has determined that performance assurance mechanisms such
as the Idaho PAP are not required under section 271. Qwest Nine State Order, 17 FCC
Rcd 26303 at 26544, ~ 440. Indeed, nowhere in section 271, or anywhere else in the Act
for that matter, is there a requirement that Qwest maintain such mechanisms. Instead, the
varous PAPs were offered by Qwest on a voluntary and temporar basis to underscore
Qwest's intent to continue to meet its section 271 obligations after entering the long
Qwest Corporation's Responsive Comments - 14-
distance market. Qwest's legal obligations under section 271 remain with, or without, the
PAP. Because the PAP is voluntar in nature, Qwest is under no legal obligation to
continue to make it available to CLECs in new interconnection agreements.
14
B. The PAP and PIDs Are No Longer Necessary or Appropriate.
L The PAP provides that the Commssion may review whether the
Continuation of the PAP is necessary.
The Idaho PAP was a temporary measure designed to ensure compliance in the
years immediately following section 271 authorization. Indeed, the Idaho PAP, which
was reviewed by both the Commission and the FCC prior to section 271 authorization,
specifically provides for the sunset of the PAP:
Qwest wil make the PAP available for CLEC interconnection agreements until
such time as Qwest eliminates 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)I5
Qwest stopped providing in-region, interstate, interLATA interexchange through section
272-compliant affiliates as of Februar 20,2007. 16
While Qwest does not maintain that the language in section 16.3 mandates
automatic termination of the PAP once the trggerng event has occurred, the inclusion of
this language in the Idaho PAP demonstrates the understading of the parties that the
PAP was not intended to be permanent. Instead, the paries agreed to revisitthe issue
once suffcient time had passed to determine whether the PAP was necessary and
appropriate in the current climate.
14 Even if Qwest were required to provide the PAP or some similar framework pursuat to section 271,
which it clearly is not, federal cours have determed that state commssions cannot impose section 271
requirements into an interconnection agreement. See e.g., Qwest Corporation v. Arizona Corporation
Commission, 496 F.Supp. 2d 1069 (D. Az. 2007).15 Idaho PAP, Section 16.3
16 See Qwest Petition at 'r'r33-35.
Qwest Corporation's Responsive Comments - 15 -
2. The PAP does not meet the "appropriate or necessary" standard set
forth in Section 16.3 of the Idaho PAP.
As noted above, the PAP provides that "the Commission and Qwest shall review
the appropriateness of the PAP and whether its continuation is necessary.,,17 Under this
standard, Qwest and the Commission must deterine whether the PAP is stil necessar
in light of the fact that: (a) it prejudices Qwest by imposing significant payments in the
face of superior wholesale serice quality pedormance; (2) it results in payments to
CLECs and the State Fund without any showing of actual har or discrimination; and (3)
other legal and contractual mechansms exist to ensure that Qwest meets its non-
discrimination obligations. Moreover, contrary to Integra's suggestions, PID data are not
required for the CLECs to monitor service quality, nor is the PAP curently necessary to
prevent backsliding. Qwest respectfully suggests that, under this "necessary and
appropriate" standard, the PAP is no longer necessar, and in fact it is outdated and
counterproductive.
a. The PAP requires self-executig payments without any
showing of harm or discrimiation.
In the nearly six years since section 271 authority was granted in Idaho, Qwest
has maintained near-pedect wholesale service quality and has no incentive not to
continue that trend. No backsliding has occurred; Qwest has not discriminated against
the CLECs in favor of its retail customers. In its Petition, Qwest provided a char
depicting Idaho-specific results for the last five years; that char showed a five year
average of in excess of a 99% performance rate.I8 In short, Qwest' s track record on non-
discriminatory service quality is exceptionaL. Despite this stellar record in Idaho, Qwest
has been forced to pay hundreds of thousands of dollars in corresponding PAP payments
to CLECs and the state of Idaho. 19 Yet, there is no evidence suggesting that those
payments were necessary or that they were rationally related to real har, competitive
har or consumer har. Instead these disproportionate payments represent the fears that
17 Idaho PAP, Section 16.3.
18 Qwest Petition at ii 36.
19 During the period from 2003-2007, Qwest has paid $282,638 in Tier 1 Payments to Idao CLECs and
$53,884 in Tier 2 Payments to the state ofIdaho.
Qwest Corporation's Responsive Comments - 16-
existed six years ago, but which have never come to pass. In addition, administration of
the PAP continues to result in significant process and administrative costs to Qwest.
The PAP presently provides tangible rewards to CLECs that they are,
understandably, loathe to forego. However, the fact that CLECs receive payments under
the PAP must not be mistaken for grounds for requiring Qwest to continue it. CLECs are
entitled under the Act to receive nondiscriminatory service. The PAP is structued so that
these rewards are mandated despite the fact that Qwest has maintained a near perfect
level of performance over the course of the last five years, both in the context of
wholesale service quality and non-discrimination. There is no evidence that either the
CLECs, or Idaho consumers in general, have suffered any harm. Nonetheless, Qwest
continues to make payments. Any payments received by the CLECs or the state should
be rationally related to a real harm suffered.
b. The PAP is unnecessary to promote wholesale service quality.
The Intervenors have not shown that Qwest's wholesale service quality is
discriminatory. Instead, they confuse the purpose of the PAP - to prevent Qwest from
favoring its own customers and thereby discrminating against the CLECs - with quality
assurance and the concept of a service level agreement. Indeed, the crux of their
arguent to retain the PAP centers around their desire to use the PAPas a servce level
agreement or other guarantee of service. The PAP, however, is neither designed nor
intended to act as a specific remedy for service quality issues.2o Instead, the
interconnection agreement framework, like any business to business contract, already
ensures suffcient avenues of redress for contractual breaches such as service quality
deficiencies.
Evidence that the PAP was never intended to be a serice assurance measure is
found in Section 16.3 of the Idaho PAP, which provides for the automatic elimination of
the PAPin the event that Qwest withdraws from the interLATA market. Section 16.3
states that "in the event Qwest exits the interLAT A market, that (sic) State PAP shall be
rescinded immediately." If Qwest were to withdraw from the interLATA market, the
20 Qwest recognizes that paries often agree to liquidated damages on an ar's length basis in negotiated
contracts. However, in the context of the PAP, Qwest is forced to accept liquidated daages that are no
longer appropriate or related to the reasonable likelihood of har. Therefore, it is one-sided and
inppropriate for use as an SLA.
Qwest Corporation's Responsive Comments - 17 -
CLECs would stil be entitled to interconnection and would stil be entitled to
nondiscriminatory service under the Act; however, they would not have a PAP.
Presumably, they would either negotiate other service quality remedies or rely on existing
provisions in the template interconnection agreement. That is what Qwest now suggests.
To fuher limit the CLEC's concerns regarding service quality, Qwest stands
prepared to negotiate additional language for new interconnection agreements that
provides a CLEC customer with the assurances it needs and sufficiently demonstrates
Qwest's commitment to wholesale serice of a quality that meets or exceeds what is
provided to Qwest retail operations.
2 i Of course, this proposed language is only an
example meant to ilustrate that sufficient service quality provisions can be negotiated
into interconnection agreements; Qwest is wiling to negotiate other commercially
reasonable ters as well.
c. Withdrawal of the PAP and PIDs wil not expose the CLECs to
commercially unreasonable burdens.
Integra alleges that "Qwest seeks to shift the burden to CLECs to require them to
individually bring Qwest serice quality problems to this Commssion in each and ever
instance," and that, "Qwest's proposal provides no remedy for poor wholesale quality at
all.',2 These statements are untrue and misrepresent the natue of a commercial
relationship; they also ignore the way service quality issues have been historically
handled in this jurisdiction. Contrar to Integra's suggestion, Qwest has not ignored
customers or forced them to undertake the "time and expense" of bringing a complaint to
the Commission "in ever instance." For example, in the retail context where customers
initially canot resolve matters with Qwest and seek to bring complaints, the vast
majority reach a satisfactory conclusion in the informal complaint process. Qwest also
retains responsibility under law to satisfy the nondiscrmination requirements of the Act
and has demonstrated the ability to do so. Failing to work with CLEC customers on
commercially reasonable terms would not only be a commercial disaster for Qwest, it
would likely provoke legal or regulatory complaints at the state or federal leveL.
21 Qwest Petition at Exhibit 1.
22 Integra comments at 13.
Qwest Corporation's Responsive Comments - 18 -
In the absence of the PAP, serice quality issues would be handled exactly like
any other contract issue where questions and concerns are addressed though normal
business-to-business exchanges (queries to the service managers, calls between subject
matter experts, etc.), the more formal dispute resolution procedures defined in
interconnection agreements, and finally, as a last resort, with a call for Commission
assistance or the initiation of a formal complaint. This approach does not shift the burden
from Qwest to provide quality service but it does eliminate the self-executing payment
featue of the PAP and puts the paries on equal footing. Far from providing "no remedy
for poor wholesale service quality at all" as Integra complains, this approach is the exact
mechanism used successfully by this Commission to ensure servce quality for retail
customers for decades.
Likewise, the PAP is no longer necessary to prevent "backsliding" to
discrminatory practices. The Intervenors offer no explanation as to why, on the
wholesale side, Qwest should be forced to make self-executing payments that are not
supported by any showing of actual damages or competitive har. Indeed, the FCC has
noted that the PAP "is not the only means of ensuring that a HOC continues to provide
nondiscriminatory serice to competing carers.,,23 The FCC recognized that, aside from
the PAP, "Qwest faces other consequences if it fails to sustain an acceptable level of
service to competing carers, including enforcement mechansms in its interconnection
agreements, federal enforcement action pursuant to Section 271 (d)(6), and remedies
associated with anti-trst and other legal actions.,,24 These avenues are more than
sufficient and all of them wil stil be available if the PAP is removed.
d. PID data are not required to determie servce quality.
The Intervenors allege that '~ithout the availability of PID data it would be
extraordinarly difficult,,25 for a CLEC to demonstrate Qwest's poor serice quality
performance under its ICAs. In making this claim Integra ignores the fact that the
CLECs have independent access to the necessar information from which to draw service
quality conclusions. CLECs are involved in every step of every transaction regarding
23 Qwest Nine State Order, 17 FCC Rcd 26303 at 26548, ir 443 (citations omitted).
24Id.
25 Integra comments at 16.
Qwest Corporation's Responsive Comments - 19-
their customers and therefore have access to the data necessar to deterine how well
their customers are being served. For example, CLECs independently know - or
cerainly should know - when their customers place orders, what due dates are assigned,
when orders are completed, and thus how long each installation took to complete. They
also have access to their own information as to due dates and can evaluate the extent to
which they are being met and whether trends are steady, improving, or declining. If they
desire, they can compare these levels to those that existed under the PAP. Similarly,
CLECs also independently know when trouble is reported, when repairs are completed,
and how long it took to resolve each trouble report. Again, they can evaluate trends and
make comparsons with historical levels under the PAP.
More importantly, however, there is no requirement, legal or otherise, that
Qwest (at its expense) compile pedormance data for the benefit of the CLECs. The
CLECs can collect their own data; in fact, that data wil be more granular than data
currentl y reported by Qwest under the PAP, since the CLECs' data wil be broken down
to the end user leveL. CLECs can use their own data to raise issues if they perceive that
contractual or statutory obligations are not being met.
e. The present competitive climate supports elimination of the
PAP.
On page 12 of its comments, Integra claims that as Qwest achieves deregulation
in its retail markets, 'ihe essential nature of Qwest's PAP grows in order to ensure Qwest
is not able to leverage its dichotomous role as the predominate provider of both wholesale
and retail services." This statement does not make sense. Qwest's "dichotomous role" as
a provider of both wholesale and retail serice has existed since the enactment of the
1996 Act. That has not changed, although there can be no argument that Qwest's
"predominance" in the retail market has only diminished since that time. There is no link
between the PAP and the deregulation of retail markets. They are unrelated phenomena.
What is interesting about the evolution of competition since 1996 is that the most
prevalent type of competition to Qwest has come from a source not really contemplated
by the 1996 Act: wireless carers. As wireline customers leave the network, CLEC
customers become ever more important to Qwest's commercial success. Thus many of
the ver market conditions that support retail deregulation, such as the availability of
Qwest Corporation's Responsive Comments - 20-
wireless and cable retail alternatives, also effectively support the removal of the PAP.
The telecommunications market is such that Qwest must value both retail and wholesale
markets and serve both equally well in order to survive in this industr.
Integra also argues that "elimination of wholesale service quality standards (PIDs)
and the automatic enforcement mechanism associated with these standards (P AP) would
certainly weaken competition in Idaho." There is absolutely no evidence to support this
statement either. Instead, the Idaho market has been deemed open since the
Commission's supportive recommendation for Qwest's 271 application and the FCC's
approval in 2002. Since that time, the market in general has become increasingly
competitive as evidenced by the number of interconnection agreements executed in Idaho
since 2003. There is nothing that suggests this wil not remain the case if the PAP is
removed. This Commission should decline Integra's invitation to make a decision based
on the unsupported speculation that Qwest wil begin violating the law (i.e., violating the
Act by discriminating against CLECs) without a PAPin place. Such speculation is
neither reasonable nor necessar.
C. Integra's Claim that Qwest Misses Performance Standards Does Not Provide
Grounds to Retain the PAP.
Finally, Integra argues that Qwest's claim that its average Idaho performance
since 2003 has been over 99% "is misleading. ,,26 According to Integra, "if Qwest
pedormed at these levels for all performance measures, or even the most crcial of its
pedormance measures, Qwest would not make any pedormance payments.',2 This is not
tre. The reality is Qwest's overall PAP perormance, whether expressed as a percentage
of all items measured or of all payment opportnities, has been near perect relative to
meeting the standards. This is supported not only by the data but by the relative lack of
complaints by CLECs regarding serice quality. Only a few pedormance misses (less
than two percent of all measurements capable of generating payments) generate
payments. This featue of the PAP - that it automatically generates signficant payments
despite such near-pedect overall performance and no corresponding showing of actual
harm to the CLECs - ilustrates how far the PAP depars from a commercially
26 Integra comments at 14.
27 Id.
Qwest Corporation's Responsive Comments - 21 -
reasonable arrangement and why it is no longer necessar now that the fears of six years
ago have not come tre.
1. Existing data demonstrate a high level of service quality.
In its Petition, Qwest provided the following char depicting Idaho-specific results
for the last five (5) years:
Percent Items Met bi Major PID Category
Category 2003 2004 2005 2006 2007 Grand
Total
Billna (BI)95.8%99.6%99.8%99.99%99.99%99.3%
Maintenance & Repair 99.3%99.4%99.6%99.5%99.7%99.5%
(MR)
Ordering &99.3%99.0%99.3%99.1%99.1%99.2%
Provisionina (OP)
Pre-order/Order (PO)99.1%99.5%99.3%99.5%98.4%99.2%
Total 96.0%99.6%99.8%99.98%99.99%99.3%
This chart ilustrates that Qwest met an exceptionally high percentage of items. 28 An
individual item is counted as met if the commitment to the customer-in this case a
CLEC-is met. An example is the extent to which Qwest satisfies a pledge to install a
service or facility within a cerain number of days, or to complete a repair within an
expected interval (e.g., four hours). The de minimus percentage of items (0.7% overall)
for which Qwest did not meet the commitments represent the very few repair tickets,
orders, etc., that generate the PAP payments in the commitments-focused measurements.
Viewing this from the perspective of payment opportnities - i.e., from the
measurement level, rather than from the level of individual items - results in the
inclusion of not only "commitment met" types of measurements, but also interval
measurements (such as average installation and repair intervals). The measurement level
or payment opportities perspective yields the following results:
28 Items are the individual unts comprising a measurement, e.g., individual orders, tickets, local service
requests or, in the case of some biling measures, dollars.
Qwest Corporation's Responsive Comments - 22-
Percent Payment Opportunities Met by Major PID Category
Category 2003 2004 2005 2006 2007 Grand
Total
Billing (BI)95.7%97.7%97.3%99.1%99.2%98.3%
Maintenance & Repair 97.9%96.7%96.5%96.1%97.9%96.9%(MR)
Ordenng & Provisioning 99.5%98.4%98.8%98.5%99.3%98.9%(OP)
Pre-order/Order (PO)96.8%98.1%98.8%98.6%98.3%98.2%
Total 98.3%97.7%97.9%97.8%98.6%98.0%
Ths char demonstrates the extent to which PID measurements (i.e., "payment
opportities") actually triggered PAP payments, expressed in ters of the percentages
of measurements that did not trigger PAP payments. Clearly, the proportion of
measurements that met their PID/P AP standards were all extremely high. In total, across
all categories in the five years shown, less than two percent of payment opportities
actually generated payments. As explained in more detail below, the only PAP-relevant
example of Qwest's pedormance cited in the Integra comments, as well as all other
examples that could be cited that generate PAP payments, are included in the two percent
of measurements that missed their standards and generated payments.
2. Integra's specifc examples are incorrect, irrelevant, or insignificant.
a. Integra's First Example.
In its first example, Integra alleges that Qwest failed to meet its installation
commitment benchmark in 6 ofthe last 12 months for DSI EELs in Interval Zone L The
actual results are as shown in the following table:
OP-3D, Installation Commitments Met, Zone 1, 051 EEL
Month Result Volume Month Result Volume
June 2007 88.2%17 January 2008 95.7%47
July 80.0%10 February 100.0%9
August 95.2%21 March 100.0%9
September 85.7%7 April 100.0%9
October 96.9%32 May 81.8%22
November 84.2%19
December 85.7%14 12-mo Average 91.7%18
(Bolded items met or exceed the 90% benchmark.)
Qwest Corporation's Responsive Comments - 23-
Whle it is correct that six of the twelve months failed to meet the 90 percent standard,
this is but one dimension of the situation that, again, represents only a small par of the
overall 2% of metrics that did not meet standards. In other words, it is a needle in a
haystack. Looking more deeply at these numbers, Qwest's overall perormance for
installations of DS 1 EELs in Interal Zone 1 is very good:
· Qwest's installation commitments-met pedormance in three of the last four
months was 100%.
. Looking at the l2-month average pedormance (91.7%), Qwest's average
commitments met percentage exceeded the 90% benchmark for this metric.
· Four of the six "meets" cited by Integra were in the most-recent five months.
· For the related measurement of average installation interals (OP-4D), Qwest's
installation intervals for this product met the six-day PID benchmark in 11 of the
past 12 months, with 8 months posting less than five days, on average, including
all of the most-recent five months, as shown in the following table:
OP4D, Installation Intervals, Zone 1, DS1 EEL (days)
Month Result Month Result
June 2007 4.9 January 2008 3.3
July 5.1 February 3.3
August 5.0 March 3.4
September 5.3 April 4.2
October 4.8 May 4.5
November 7.5
December 5.6 12-mo Average 4.6
(Bolded items met or bettered the 6-day benchmark.)
These related data demonstrate that, even with the reported levels of commitments
missed, the overall average installation interal for these orders was well within the six-
day benchmark, and recent months were even more timely.
Finally to put this example in further context, the average monthly volume for
DSI EELs was only 18 installations for all CLECS in Idaho in Zone 1. Hence Integra's
complaint concerning the failure to meet the "installation commitment benchmark",
involved a ver small number of individual installations each month.
Qwest Corporation's Responsive Comments - 24-
b. Integra's Second Example.
The second example cited by Integra is irrelevant because it does not address a
PAP standard. Integra claims that '~hile Qwest met, on average, its 2-wire loop29
installation benchmark of six days in all 12 months, Qwest failed to meet, on average, the
SGAT installation interval of 5 days in 8 of the 12 months.,,3o In making this claim,
Integra applies an irrelevant standard in at least two ways. First, the applicable standard
is the six-day PID interal, not the 5 days as Integra claims; Qwest met the six day
standard durng the referenced perod. Integra characterizes the five-day standard that it
attempts to impose as an "SGAT standard." However this is a misreading of the SGAT.
The "SGAT installation intervals" are guideline intervals for setting due dates for this
product. This leads to the second major way Integra misapplies its irrelevant standard.
The SGAT defines these standard offered intervals as due-date guidelines for individual
requests/orders, not as average standard intervals calculated from all orders, as Integra
attempts to suggest. Moreover, the SGAT defines the interal guidelines as 5, 6, or 7
business days, depending on the quantity of loops being requested on the same order to
the same location, not just as a single 5-day interval as Integra claims. By contrast, the
PID and PAP address performance in the aggregate (including orders with all three
interals assigned- i.e., 5, 6, or 7 days as applicable).
As can be seen in the following table, Qwest not only met the PIDIP AP standard
of six days in each of the twelve months, its actual pedormance across the 12 months
produced an average very close to Integra's fictitious five-day "standard" at 5.1 days.
29 As a point of clarification, the numbers Integra references for "2-wire loops" match the installation
intervals (OP-4D, Zone 1) that were reported for the Unbundled Analog Loop product, which is a different
2-wire product that is reported just below the 2-wie loop numbers on the same page. See Exhibit A.
Qwest met the stadad in all but one month for 2-wire loops.
30 Integra comments at 15.
Qwest Corporation's Responsive Comments - 25-
MR-6D/E, Mean Time to Restore, 051 EELs (hours:min)
Month Result Month Result
June 2007 3:00 January 2008 4:03
July 3:06 February 3:15
August 2:27 March 2:24
September 3:11 April 2:02
October 3:43 May 4:57
November 3:58
December 4:53 12-mo Average 3:29
Furher, with regard to this repair pedormance, it is important to note that, (1) the
repairs cited represented only atiny percentage of all DS 1 EELs in service in any given
month (averaging 1.5% for all 12 months), based on the trouble rate percentage; and (2)
the overall trouble rate for DS 1 EELs provided to CLECs averaged 0.5% better32 than for
Qwest retail customers across the same l2-month period.
3. Even when reviewed in the light most favorable to the CLECs, these
statistics do not demonstrate discrimiation.
None of the missed commitments or intervals cited by Integra demonstrates that
Qwest has discrminated against CLECs by providing superor serice to its own
customers. To the contrary, Integra ignores the fact that although the PIDs track parity
misses, they do not track the opposite - instances in which Qwest provides better serice
to CLECs than it does to its own customers. Thus, the 2% of the time that Qwest has
failed to meet the service quality metrcs is statistically insignficant in light of the
instances where Qwest actually provides superior service to CLECs (thus, discriminating
against itself). This concept is ilustrated by the example given in the previous section;
namely that Qwest's service quality on DS 1 EELs was actually better for the CLECs than
it was for its own customers.
Regardless, the fact that Qwest's overall performance is in excess of98% is, in
and of itself, more than sufficient to rebut any notion of discrimination. As noted
previously, prevention of discriminatory "backsliding" is the sole purpose of the PAP.
Thus, there can be no reasonable explanation for why Qwest must continue to pay
32 The trouble rate measure depicts the overall rate of trouble as a percentage of the installed base of a
given product or servce. Therefore, better penormance is depicted by a lower rate.
Qwest Corporation's Responsive Comments - 27-
hundreds of thousands of dollars in PAP payments when all of the statistics point to a
lack of discrimination.
CONCLUSION: PAP and PIDs
Qwest respectfully asserts that continuation of the PAP and PIDs is no longer
necessary or appropriate. Not only has Qwest provided non-discriminatory wholesale
serice since it received section 271 authorization in 2002, but the PAP is neither
necessar nor the appropriate method of ensuring service quality and non-discrimination.
With respect to the former, the paries are free to negotiate commercially reasonable
enforcement mechanisms and remedies into the ICA to ensure service quality. With
respect to the latter, section 271 provides an adequate means for enforcement of Qwest's
non-discrimination obligations. For these reasons, Qwest respectfully requests that the
Commission grant the relief set forth in Qwest's Petition.
Dated this 15th day of September, 2008.
Respectfully submitted,~/#. -Ma (î No. 2142)
999 Main. Suite 1103
Boise,ID 83702
Adam L. Sherr
Corporate Counsel, Qwest
1600 7th Avenue, Room 3206
Seattle, W A 98191
Attorneys for Qwest Corporation
Qwest Corporation's Responsive Comments - 28-
('Exhibit A
Idaho
liii~;J
Jll 17, 20 Page 71 01190
(
ExhibitB
Idaho
MR-5A - All Troubles Cleared within 4 Hours (Percent) -Interval Zone One
Enhin.ed Ei rd ed Lo. . 0 S 1 Capable(Paii
CLEC tlm CLEC Denorn CLEC Resul CLEC SI De OwestNlI Qwe:s Denorn Qwest ResUl tud ZScr PañtyScr 100.00%
7 11 63.64%48.10%4 4 100.00%-0.22634 90.00%
6 8 75.00%43.30%1 1 100.00%-0.90335
J
80.00%
12 12 100.00%0.00%10 11 90.91%-0.75757 -1.46057 70.00%
60.00%12 17 70.59%45.56%6 7 85.71%0.962533 -0.867554 0 50.00%
8 11 72.73%44.54%2 2 100.00%-1.117961 I:40.00%
1 1 100.00%0.00%4 4 100.00%30.00%
7 9 7778%41.57%2 2 100.00%-1.241737 20.00%
10.00%8 16 50.00%50.00%6 6 100.00%0.062599 0.00%
6 7 85.71%34.99%5 5 100.00%-1.127931 ~~e e
~
!;
~Z ~
II ~G
~.i !~l i..4 6 66.67%47.14%6 6 100.00%-0.545334
2 3 66.67%47.14%3 3 100.00%-1
7 15 46.67%49.89%
June 17, 2008 report Page 124 of 190
Dae
Enhanced Eiided Loops. OS1 Capable(Paii
CLECDêMl' ClECResult.. CLECSi i). QWé:SNi. QweSlDerim QwestRulJ I'dZScr
66.67%
81.82%
81.25%
77.27%
83.33%
75.00%
62.50%
78.57%
60.00%
00.00%
00.00%
76.92%
June 17, 2008 report
47.14%
38.57%
39.03%
41.91%
37.27%
43.30%
48.41%
41.03%
48.99%
0.00%
0.00%
42.13%
PailySa
-0.628581
-1.168849
-1.354093
-1.178908
-1.948229
-1.476479
-0.797367
-1.193786
-1.073418
-1.98787
-1.767551
-1
¡I:
79.31%
78.57%
72.73%
77.78%
55.00%
59.09%
78.57%
73.33%
57.14%
60.87%
80.95%
76.92%
0.695941
-0.277732
-0.582432
0.042297
-1.559699
-0.783738
0.883737
-0.318749
-0.120761
-1.624902
-1.2625æ
o
Page 127 of 190
.,'
CERTIFICATE OF SERVICE
I do hereby cerify that a tre and correct copy ofthe foregoing Qwest Corporation's
Responsive Comments was served on the 15th day of September, 2008 on the followig
individuals:
Jea D. Jewell
Weldon B. Stutzm
Idaho Public Utilties Commssion
472 West Washington Street
P.O. Box 83720
Boise, il 83702
j j ewell(fuc. state.id. us
i Hand Delivery
U. S. Mail
Overnght Delivery
Facsimle
Email
Douglas K, Denney
Integra Telecom
730 Second Avenue S., Suite 900
Mineapolis, MN 55402
dkdenneygintegratelecom.com
Hand DeliveryiU. S. Mail
Overnght Delivery
FacsimileiEmail
Hand DeliveryíU. S.Mail
Overnght Delivery
FacsimileiEmail
Hand DeliveryiU. S. Mail
Overnght Delivery
Facsimile--Email
Michel Singer Nelson
Associate General Counsel
360networks (USA) Inc.
867 Coal Creek Circle, Suite 160
Louisville, CO 80027
mnelsonaY360 .net
Gregory L. Rogers
Senior Corporate Counsel
Level 3 Communcations LLC
1025 Eldorado Boulevard
Broomfeld, CO 80021
greg.rogersaYleve13 . com
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Attorney for Qwest Corporation
Qwest Motion for Additional Time - 1 -