20090123Motion to Bifurcate.pdf

Mary S. Hobson
Attorney & Counselor
999 Main, Suite 1103
Boise, ID 83702
208-385-8666
REC 1-
t,.~-
2609 JAN 23 PH 1;: l 9
January 23, 2009
VIA HAND DELIVERY
Jean D. Jewell, Secretary
Idaho Public Utilities Commission
472 West Washington
Boise,ID 83702-:5983
RE: Docket No. QWE-T-08-04
Dear Ms. Jewell:
Enclosed for filing with this Commission are an original and seven (7) copies of the
Motion of Qwest Corporation to Bifurcate SGAT and PAP Issues and for
Procedural Order. If you have any questions, please contact me. Thankyou for your
cooperation in this matter.
Very truly yours"
i' 'i'\//l-i ii_/ ;, L c-.- ,,1"/ L--' -, ,. w-
MaryS. I1obson
Enclosures
cc Service List
Mar S. Hobson (ISB. No. 2142)
999 Main, Suite 1103
Boise, ID 83702
Tel: [phone]
mary.hobsontig west. com
RECEI
2009 JAN 23 PM ~: 19
Adam L. Sherr
Corporate Counsel, Qwest
1600 7th Avenue, Room 3206
Seattle, W A 98191
Tel: [phone]
adam. sherrtiqwest. 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
Motion of Qwest Corporation to Bifurcate
SGAT and PAP Issues And for Procedural
Order
Qwest Corporation (Qwest), by and through its attorneys of record, moves the
Commission to bifucate the issues in Qwests Petition relating to the withdrawal of its
Statement of Generally Available Terms (SGAT) from those issues relating to removal of
the Performance Assurance Plan (PAP) and the Performance Definition Indicators
(Pils). Qwest further requests that the Commission enter an order granting Qwest
authority to withdraw the SGAT, based on the existing record herein.
Finally, Qwest requests that the Commission enter a procedural order for
resolution of the remaining PAP issues, which wil accommodate the due process rights
Motion of Qwest Corporation to
Bifurcate SGAT and PAP Issues
And for Procedural Order - 1 -
of the paries to fully review and respond to any evidence that is hereinafter submitted for
the Commission's consideration in connection with Qwests PAP.
PROCEDURA BACKGROUND
Qwest fied its Petition in this docket on May 2, 2008, which clearly delineated
two separate requests of the Commission: the authority to withdraw the SGAT and,
separately, perission to withdraw the PAP and accompanying PIDs. Thoughout the
record that was subsequently developed in this case, the paries have commented
separately on the SGAT and PAP.
On May 23, 2008, the Commission issued a Notice of Petition and Notice of
Modifed Procedure establishing a comment deadline of July 7, 2008. 360networks
(USA) inc. (360networks) petitioned to interene on June 27, 2008. Integra Telecom of
Idaho, Inc., Electrc Lightwave, LLC dba Integra Telecom, and Eschelon Telecom dba
Integra (collectively referred to as "Integra") petitioned to intervene on July 7, 2008. Both
interention petitions were granted on August 5, 2008.
On July 7,2008, 360networks and Level 3 Communications, LLC (a non-
intervenor) jointly filed comments in response to the Commission's notice ("the
360networks comments"). And, on July 9,2008, Integra and McLeodUSA
Telecommunications, Inc. dba PATEC (also a non-intervenor) fied an additional set of
comments ("the Integra comments"). The 360networks comments deal almost
exclusively with the SGAT. The first eleven pages of the Integra comments discuss the
SGAT issues, while the remaining five pages speak to the PAP issues.
Staff also fied comments on July 7, 2008. However Staff did not address the
merits of Qwests Petition in so far as it sought to withdraw the SGAT, but instead
focused on the PAP and "Performance Measurements." Staffs comments concluded with
the recommendation that the Commission delay its decision on Qwests Petition until "a
review of the Performance Measurements can be completed and an analysis presented to
the Commission for its fial review and decision." 1 Attached to Staff comments was a
1 Comments of the Commission Staffat 3 (July 7,2008).
Motion of Qwest Corporation to
Bifurcate SGAT and PAP Issues
And for Procedural Order - 2 -
single page document entitled "ROC Staff Scoping Document: Collaborative Review
Qwest Performance Assurance Plans (QP AP)." The document initiated the discussion of
what Qwest wil refer to as the "ROC Review" process. Whle the ROC Review process
has been the subject of considerable controversy, there is no dispute that it deals
exclusively with the PAP and PIDs and is not intended to address the SGAT.
Accompanying Staffs comments was a Motion to Extend Comment Period, in
which Staff sought the Commission's approval to paricipate in the "multi-state review
process by Liberty Consulting" i.e., the ROC Review, and requested that Commission the
delay consideration ofthe merits of Qwests Petition ''until such time as the (ROC)
review is complete and a final report can be filed with the Commission."i Staffs failure
to address the SGAT and PAP issues separately, as the Intervenors had done and as set
out in Qwests Petition, appears to be based on the following concer contained in the
Staff motion:
Qwest s SGAT includes a comprehensive performance assurance plan
(PAP), as well as a comprehensive list of performance measures known as
performance indicator definitions (PID) to provide specific data about
Qwests interconnection services to competitors using the Company's
facilities and network. Withdrawal of the SGAT would also remove the
performance assurance plan and indicator definitions that are part of the
SGAT.3
This Staff concern is addressed below.
On August 4, 2008 Qwest fied an answer to Staffs motion setting out its
objections to the ROC Review as described in the scoping document and stating Qwests
position that it would not voluntarly participate in the "collaborative review"
contemplated by the ROC Staff. On the same day Qwest filed a Motion for Permission to
File Responsive Comments, requesting perission to respond on or before September 15,
2008 to the issues raised by the paries' comments filed on July 7 and 9.
On September 4, 2008, the Commission served its Notice of Procedural Schedule
and Notice of Hearing for Oral Argument approving Qwest s fiing of comments or a
wrtten brief by September 15 and granting Staff and Intervenors the opportunity to file
2 Commission Staff Motion to Extend Comment Period at 2 (July 7, 2008).
3 ¡d. at 1 (emphasis added).
Motion of Qwest Corporation to
Bifurcate SGAT and PAP Issues
And for Procedural Order - 3 -
their own comments or briefs by October 31, 2008. That Commission Notice set oral
argument for December 9,2008, and made no mention of Staffs motion of July 7
requesting delay of the proceedings until the completion of the ROC Review or of Staffs
request to paricipate in the ROC process.4
As agreed, Qwest fied extensive wrtten comments on September 15,2008. The
first twelve pages ofthese comments respond to the issues raised by the Intervenors in
connection with the SGAT, while the remaining comments addressed the PAP. After
these comments were filed, Qwests representatives and Staffbegan discussing whether
there could be alteratives to Qwest's proposal to completely withdraw the PAP. 5 At the
request of the parties the Commission entered Order Nos. 30662 and 30693 to
accommodate review and discussion of Qwests PAP alternative. Order No. 30693
vacated the remaining dates on the procedural schedule and stated, "the Commission wil
approve a new procedural schedule after Qwest fies its alternative proposal."
At a telephone conference held December 3,2008, Intervenors expressed no
support for Qwests alternative PAP proposal and declined to offer suggestions for its
improvement. Consequently Qwest has deterined that it wil not offer the PAP
alternative at this time.
SGATMOTION
Qwests Petition seeks the Commission's approval for two distinct forms of
relief: withdrawal of the SGAT and, separately, removal of the PAP and PIDs. Qwest
asks the Commission to bifucate the issues raised by its Petiton and take up the SGAT
at this time.
4 The Commission granted Staffs request to participate in the ROC Review at a
decision meeting on September 29,2008. However no order has been entered in the
curent docket reflecting that decision.
5 The Commission Staff Motion to Extend Deadline for Comments and Vacate Hearing
Date submitted on October 23,2008, is in eror when it states on page one that, "Qwest
has indicated to Staff that it may consider presenting an alternative to its Statement of
Generally Available Terms and Conditions." All discussions with Staff and Intervenors
concerng Qwest presenting an alternative were limited to the PAP and PIDs.
Motion of Qwest Corporation to
Bifurcate SGAT and PAP Issues
And for Procedural Order - 4 -
The procedural history of this case, in so far as it pertains to the SGAT, is simple.
Qwest filed its Petition dealing with the reasons for withdrawing the SGAT on May 2,
2008. Intervenors filed wrtten comments pursuant to the Commission's Notice of
Petition and Notice of Modifed Procedure in early July, 2008. Finally, Qwest, the
moving party, responded to those comments on September 15, 2008. In sum, the SGAT
portion of this case has completed its course of comment and reply. In addition, Qwest
notes that during the eight months this case has been pending, as durng the four years
prior to its filing, Qwest has not offered or updated the SGAT; nor has it negotiated an
ICA using the SGAT as its basis.
As noted, Staffs primary objection to Petition in so far as it relates to the SGAT
appears to be that "( w )ithdrawal of the SGAT would also remove the performance
assurance plan and indicator definitions that are part of the SGAT.,,6 This is not an
issue. If the Commission grants Qwest's request to withdraw the SGAT, Qwest wil
continue to make the PAP (presently designated as SGAT Exhibit K) and the PIDs
(Exhibit B) available to CLECs on the same terms they are available today until Qwest is
given authority to withdraw, amend or substitute an alternative(s) for said PAP and Pils.
Qwest respectfully requests, therefore, that the Commission separate the SGAT
from the issues surounding the PAP and PIDs. Qwest fuher requests the Commission
grant Qwest permission to withdraw its Idaho SGA T based on the written record
compiled in this docket.
PAP PROCEDURE
Since fiing its comments in July 2008, Staffhas advocated that the Commission
delay this docket until the ROC Review is completed and a "final report can be fied with
this Commission."? Since the ROC Review deals only with PAP and PIDs issues,
Staffs position does not conflct with the present motion to bifurcate and resolve the
SGAT issues. However, assuming that the Commission grants this motion as it pertains
to the SGAT, the procedure for the PAP portion of this docket remains unesolved. The
Commission's last statement concering the procedure for this case was predicated on the
6 See footnote 3.
7 Commission Staff Motion to Extend Comment Period at 2.
Motion of Qwest Corporation to
Bifurcate SGAT and PAP Issues
And for Procedural Order - 5 -
understanding that Qwest would be offering an alterative proposal. Since that is not the
case, it is appropriate to consider how the Commission should address the PAP.
It is clear that Staff, and perhaps some Intervenors, wish to delay substantive
work on the PAP issues until the ROC Review is complete. Although Qwest has
continuing due process concers about the use of a report coming out of the ROC Review
process in this docket, those concerns are not ripe. Qwest therefore asks that the
Commission bifurcate the PAP issues in this docket and hold them in abeyance until
April 15, 2009-a date by which, Qwest understands, the ROC Review is scheduled to be
completed. In the event the ROC Review is completed earlier, Qwest asks that the
Commission move expeditiously to reactivate the docket. Finally, Qwest requests that
when the docket is reactivated, the Commission schedule a prehearng conference for the
purose of establishing a procedural schedule suitable for resolving any issues relating to
use of the ROC Review report or other evidence, if any, and for otherise completing the
record on the PAP issues, so that they can be brought before the Commission for
decision.
cJRespectfully submitted this ")3 day of January, 2009.
I-~
obson (ISB. No. 2142)
999 n. Suite 1103
Boise, ID 83702
Adam L. Sherr
Corporate Counsel, Qwest
1600 7th Avenue, Room 3206
Seattle, WA 98191
Attorneys for Qwest Corporation
Motion of Qwest Corporation to
Bifurcate SGAT and PAP Issues
And for Procedural Order - 6 -
CERTIFICATE OF SERVICE
I do hereby certify that a tre and correct copy of the foregoing Motion of Qwest
Corporation to Bifurcate SGAT and PAP Issues and for Procedural Order was
served on the 23rd day of January, 2009 on the following individuals:
Jean D. Jewell
Weldon B. Stutzm
Idaho Public Utilties Commssion
472 West Washington Street
P.O. Box 83720
Boise, il 83702
jj ewell~,puc.state.d. 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
dkdenney'iintegratelecom.com
Gregory L. Rogers
Senior Corporate Counsel
Level 3 Communcations LLC
1025 Eldorado Boulevard
Broomfeld, CO 80021
greg.rogers(ë4leve13 .com
Hand DeliveryiU. S. Mail
Overnght Delivery
FacsimileiEmail
Hand DeliveryiU. S. Mail
Overnght Delivery
FacsimleiEmail
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
mnelson'i360 .net
dt:tl~Attorney for Qwest Corporation
Motion of Qwest Corporation to
Bifurcate SGAT and PAP Issues
And for Procedural Order - 7 -