20090814Comments.pdf

August 14, 2009
VIA HAND DELIVERY
Jean D. Jewell, Secretary
Idaho Public Utilities Commission
472 West Washington
Boise,ID 83702-5983
Mar S. Hobson
Attorney & Counselor
999 Main, Suite n08
Boise, il 88702
208-885-8666
RECEIVE.D
2009 AUG , 4 PM 2: 39
JDAHO PUBL i"~UTILITIES COMM ŠSION
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
Comments of Qwest Corporation. If you have any questions, please contact me.
Than you for your cooperation in this matter.
Enclosures
cc Service List
Mar S. Hobson (ISB. No. 2142)
999 Main, Suite 1103
Boise, ID 83702
Tel: [phone]
mary.hobson(iqwest.com
RECEI
26B9 AUG' 4 PM 2: 39
IDAHO Ppc-íi!"UTILITIES COM)A/ŠSlON
Adam L. Sher
Corporate Counsel, Qwest
1600 7th Avenue, Room 1506
Seattle, WA 98191
Tel: [phone]
adam.sherr(iqwest.com
Attorneys for Qwest Corporation
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
In Re WITHDRAWAL of QWEST
CORPORATION'S STATEMENT OF
GENERAL y AVAILABLE TERMS AND
CONDITIONS
Case No. QWE- T-08-04
COMMENTS of QWEST CORPORATION
Qwest Corporation ("Qwest"), by and through its undersigned attorneys, files the
following Comments in support of its Petition and, pursuant to the Stipulation and Jointly
Submitted Procedural Schedule filed herein on July 29,2009, in opposition to the use ofthe
Liberty Report in this docket.
I. BACKGROUND
Pursuant the federal Telecommunications Act of 1996 ("1996 Act" or "the Act"), Bell
Operating Companes such as Qwest ("BOCs" ) are required to enter into interconnection
Comments of Qwest Corporation - 1 -
agreements with other providers of telecommunications services who request access to their
networks, facilities or services. See 47 U.S.C. §§ 251-252.
The 1996 Act also provided a means by 'which BOCs could gain entr into certin
telecommunications markets, known as the in-region interLATA services markets, from which
they had been legally precluded. 47 U.S.C. § 271. Proceedings by which BOCs sought
regulatory approval for this market entry ("interLATA freedoms") were termed "271
proceedings" and the path of 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 paricular BOC had met the standards set out in section 271. 47 U.S.C.
§ 271 (d) (2) (B).
Among the BOCs, Bell Atlantic (now Verizon) was the first to receive 271 approval
from the FCC. In 271 proceedings throughout the country competitive local exchange
companies (CLECs) had actively paricipated, seeking assurance that service quality would be
maintained once the BOCs received 271 approval and entered the interLATA markets. In
response to the CLECs and to the FCC's guidance, Bell Atlantic offered a voluntar plan to
assure service quality.
Because of Bell Atlantic's initial success, its application (including its performance
assurance plan) became instrctive for other BOCs who were seeking the FCC's approval under
section 271. Therefore, like Bell Atlantic, Qwest submitted to extensive third-pary testing of its
systems 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" or "Plan"). The PAP addressed the public interest aspects of the section 271
requirements by applying specific standards to performance data, along with self-executing
payments where the standards were not met. The original goal of the PAP was to help assure
that wholesale markets would remain open following section 271 approval.
Qwest's PAP was based on a snapshot of the industr as it stood when Qwest submitted
its 271 application to the FCC in 2002. At that time, BOCs experienced little or no competition
from wireless, cable or Interet Protocol providers. The concern was, then, that by gaining 271
freedoms the BOCs would be able to add interLATA long distance serces to their arsenal of
Comments of Qwest Corporation - 2 -
serices making them even more powerfl competitors of the CLECs. Therefore, PAPs, while
not required under the Act, were considered anti-backsliding mechanisms to assure that the pro-
competitive measures required of BOCs prior to gaining access to the interLAT A markets were
not compromised once 271 freedoms were attained. Because of when and how they were
developed, Qwests PAPs went far beyond what had been considered commercially reasonable
in ordinar business-to-business agreements and required Qwest to make automatic payments
for failure to meet PIDs even where CLECs suffered no actual har.
Even durng the workshops and negotiations in the 271 process, it was anticipated that
the PAP would not remain indefinitely. Terms were included in the Idaho PAP that required its
immediate elimination should Qwest exit the interLAT A long distance market! and required
review of the PAP's continuance once Qwest successfully eliminated its separate affliate for the
provision of inter LATA service under section 272 of the Act.2 Review under this provision of
the Idaho PAP is the subject of the current docket.
The selection of the elimination of the section 272 affiiate as a trggerng point for
review and possible discontinuation of the PAP was not random. Section 272 allowed BOCs to
provide in-region, interLATA telecommunications serices only through separate corporate
affiliates, and only when certain safeguards were in place that assured the BOC would not
discriminate against other entities in its provision of inter LATA serce. 47 U.S.C. § 272(a)(2).
However, Congress in enacting section 272 recognized that such safeguards were not needed to
continue indefinitely.3 Therefore, by its own terms, many of the requirements in section 272
expired three years after the BOC was authorized (though the 271 process) to provide in-
region, interLATA services. 47 U.S.C. § 272(f)(1). It would be surpassing strange that a
statutory provision, designed to ensure the market-opening intent of section 271, was explicitly
contemplated to be in effect for three years, at most, while the PAP, which is not mandated by
the Act is required to continue well-beyond those three years.4 In the present docket there is no
2
Idaho PAP § 16.3
fd.
3 The Act clealy states that, after three year, the safeguds of section 272 "shall cease to apply"
''uess the (FCC) extends" the protections by rule or order. 47 U.S.c. §272(f)(1); AT&T Corp. v. FCC,
369 F.3d 554, 560 (D.C. Cir. 2004).
4 The Senate bil did not contain a sunset provision; instead it delegated discretion to the FCC to grant
exceptions to the separte affliate requirements by applyig the "public interest" standad. The House
Comments of Qwest Corporation - 3 -
dispute that Qwest successfully met all of the requirements of section 272 and eliminated its
separate affiiate on Fébruary 20, 2007, thereby trggering PAP review as provided in section
16.3 of the Idaho PAP.
II. ARGUMENT
A. The Language and Structure of the Idaho PAP Direct the Nature of the Review
Required Here.
1. The language of the PAP itself demonstrates it was voluntary and
never intended to be permanent.
The first paragraph of the Commission-sanctioned Idaho PAP states that "Qwest and
CLEC voluntarily agree to the terms of the following Performance Assurance Plan ("P AP")."s
Section 1 7 of the Idaho PAP underscores the fact that the PAP was approved containing clear
language demonstrating its voluntar nature:
This PAP represents Qwest s voluntary offer to provide performance assurance.
Nothing in the PAP or in any conclusion of non-conformance of Qwest's servce
performance with the standards defined in the PAP shall be constred to be, of
itself, non-conformance with the Act. 6
Given the detailed review that the Idaho PAP received by this Commission, and the numerous
changes and refinements that its language underent in that process,7 it must be assumed that
this Commission understood and, at some level, approved the Plan as a voluntary offering.
Although Qwest concedes that its PAP was an expedient that advanced its 271 application with
the FCC, it is also clear that the FCC agreed that offering a PAP was by no means the only way
bil included an l8-month sunset provision for the separate subsidiar requirements, and did not include
a provision permtting the FCC to extend the requirements at the end of 18 months. AT&T Corp. v. FCC,
369 F.3d at 561, citing, H.R. REP. NO. 104-223, at 7 (1995). The bil that was ultimately adopted
reflected a compromise between the Senate and House versions. Thus, three years was at the extreme
end of the time period for sunset.
Id. at § I (emphasis added).
Id. at §l 7.6
7 See Commssion Decision on Qwest's Performce Assurance Plan, In the Matter of us WEST
Communications, Inc. 's Motion for an Alternative Procedure to Manage Its Section 271 Application,
Case No. USW - T -003, at 5-9 (IPUC March 7, 2002); See also Commssion Final Decision on Qwest
Corporation's Compliance with Section 271, id. at 3-4 (IPUC June 10,2002).
Comments of Qwest Corporation - 4 -
of ensurng nondiscriminatory serice and receiving section 271 approval.8 While adopting
another alternative in 2002 may have slowed Qwest s entry into the interLAT A market, in
addressing the policy issues of today, the Commission should consider less puntive and
burdensome alteratives to preserving nondiscriminatory service.
2. The PAP requires the Commission and Qwest to review whether the
contiuation of the PAP is necessary; the Liberty Report has no place in
that review process.
The language of 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 affiliate. At that time, the
Commission and Qwest shall review the appropriateness of the PAP and whether
its continuation is necessary. . . ." 9
Qwest stopped providing in-region, interstate, interLATA interexchange service through section
272-compliant affliates as of February 20,2007 10 and filed its Petition for review in May
2008.
The inclusion of the quoted language in the Idaho PAP demonstrates the understanding
of the paries that the PAP was not intended to be permanent. Qwest and the Commission
agreed to revisit the issue once sufficient time had passed to determine whether the PAP was
necessar and appropriate in the curent climate. Unfortately, this necessar review has been
side-tracked by the ROC review process that has produced the "Libery Report."l 1 The contents
of the Libery Report are addressed below in these Comments, however, in analyzing what kind
of review is required here, it is necessar to understand how the Liberty Report fits (or' does not
fit) under the framework of the PAP.
8 In the Matter of Application by Qwest Corporation 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, Memorandum Opinion and Order, FCC 02-332, 17 FCC red
26303,26548 i¡ 456 (FCC 2002) ("Nine States' Order"); See also discussion in Section IT.B.1 of these
Comments.
9 Idaho PAP § I 6.3 (emphasis added).
10 See Qwest Petition at i¡i¡33-35.
11 See "Analysis of Qwest's Performnce Assurance Plans" (Final Report) prepared by The Liberty
Consulting Group (June 30, 2009) (hereinafter "the Liberty Report" or "Report").
Comments of Qwest Corporation - 5 -
The Idaho PAP in section 16 authorizes three types of review. Paragraph 16.1 provides
that six-month reviews of the performance measurements "may" be initiated to determine
whether measurements should be added, deleted, or modified, whether benchmark standards
should be modified or replaced by party standards, and whether to move a classification from
High, Medium, or Low or from one Tier to another. Thus, the scope of six-month reviews was
specifically intended to focus on the PIDS and not on broader PAP issues. 12
The second form of review contained in the Idaho PAP is found in paragraph 16.2 and
provides for a "joint review by an independent third pary to examine the continuing
effectiveness of the PAPas a means of inducing compliant performance," which "may" be
conducted two years after the PAP is approved by the FCC. This two-year review, which would
have taken place in 2005, was not conducted. No pary sought such a review. Finally paragraph
16.3, the provision expressly invoked by Qwest in this docket,13 provides that "the Commission
and Qwest shall review the appropriateness of the PAP and whether its continuation is
necessary." The triggering event for a paragraph 16.3 review is the elimination of Qwests
section 272 affiliate.
The Libery Report states it is "most appropriate" to fit its "curent analysis" in either the
six-month review (under section 16.1) or the 16.3 context.14 While Qwest wil concede that
much of what Liberty produced in its final report (including some of its suggestions for changes
in the PAP) is more akin to a six-month review, is such a review is not relevant to ths docket
and should be taken up, if at all, only if the Commission finds it has authority to order the
continuance ofthe PAP over Qwests objection. The Report should not be considered in the
context of the present section 16.3 review.
12 In addition, section 15.0 ofthe Idaho PAP provides for "integrated audits" ofP AP data. Liberty
Consulting did conduct such an audit using 2005 data, which was completed in 2007. However, such
audits of the data produced by the PAP are not "reviews" of the overall PAP and were not, therefore,
included in section 16, which addresses "Review" of the PAP.
13 Qwest Petition ii 33.
14 Report at 18.
15 This is where the first and third of the five "investigations" in which Liberty Consulting claims to
have engaged (Report, p. 20) belong. These investigations, i.e., analyses of PAP payments and PID
results, and analyses of the structue of the PID measures are all geared to the kind of fie-tung
anticipated under the six -month reviews. P APstructue and continued existence were not included
among matters for review in six-month reviews or in the two-year review that was not conducted.
Comments of Qwest Corporation - 6 -
On its face it is obvious that the Liberty's effort is not the review contemplated in
section 16.3 of the Idaho PAP. In contrast with the requirements of 16.3, the "review" that
produced the Libery Report involved neither the Commission nor Qwest in any significant,
substantive manner.16 Furtherore, the use of "an independent third party," i.e., Liberty
Consulting, for conduct of the review, while specifically authorized in paragraph 16.2 for the
two-year review that was not conducted, is not authorized in section 16.3.17 Obviously had
Qwest or the Commission intended that the section 16.3 review proceed with multiple
commissions and "an independent third party," they were more than capable of crafting
language that authorized that approach as they did in the preceding paragraph or as they did in
the audit provisions in section 15 of the Idaho PAP.
The mismatch between a section 16.3 review and the process followed by Liberty is
clear in other respects as well. As wil be discussed in more detail below, Liberty states it was
charged with analyzing "the current effectiveness, value, and usefulness" ofthe PAP. 18 Section .
16.3 requires that Qwest and Commission review "the appropriateness of the PAP and whether
its continuance is necessary."19 These are meaningfully different standards. For example, the
curent PAP may be deemed "effective, valuable and useful" to compilng detailed data and
requiring self-executing penalties, and yet is entirely unnecessary for the original purpose of
assuring the wholesale market remains open, which can be accomplished through a variety of
less burdensome means.
Furthermore, section 16.3 makes no mention of a comprehensive analysis of PAP
payments or an analysis of the strcture of the PAP or of the PIDs. Even more obviously
section 16.3 does not contemplate that this Commission wil receive the views of other state
staffs, or ofCLECs who did not choose to intervene in Idaho. Nevertheless, the Liberty Report
focuses on those analyses and relies on exactly that kind of input. 20 The language of section
16.3 that limits involvement to "the Commission and Qwest" indicates that when the PAP was
16 Qwest provided data as requested by Liberty, but did not participate in a substantive or collaborative
maer.
17 Nor is the participation ofCLECs; although Qwest has not objected to the paricipation of the
Intervenors is this docket.
is See e.g., Report at 2 (emphasis added).
19 Idaho PAP §16.3 (emphasis added).
20 Report at 22.
Comments of Qwest Corporation - 7 -
created it was understood as a voluntar offering and that the ultimate question of the PAP's
continuation in Idaho turns on Qwests wilingness to volunteer and on the legal questions
surrounding the Commission's authority to order the PAP to continue should the Commission
and Qwest reach different conclusions. Unlike the audits and the six-month reviews, these
questions do not require or benefit from the participation of independent third paries,
particularly when the input of such third paries is based on a meaningfully different standard.
In its report Liberty concedes that its work does not constitute the review contemplated
by Qwests Petition that invokes PAP section 16.3. Liberty states, "the analysis was not
*'
intended to be part of any specific on-going reviews or dockets in any of the paricipating states,
but was intended as input to such proceedings." 21 The ilogic of a report being both "input" and
yet not a "par of any specific on-going reviews" is not explained. Qwest submits the quoted
statement is an acknowledgement that Liberty was not charged with addressing the questions
that are raised in reviews such as the present one and that its Report should not be taken as
authoritative in this and similar dockets.
Qwest wil address the short-comings of the Liberty report's "input" in these Comments
in Sections H.D and H.E below. Nevertheless, it is clear from both the language ofthe PAP and
from the Liberty Report itself, that the Commission and Qwest are to conduct this review and
that ths function simply cannot be delegated to a third pary;
3. The Commission should conduct a legal and policy review of the PAP
under section 16.3
The language of section 16.3 demands that this Commission engage in an Idaho-specific
review of the Idaho PAP. In requiring that Qwest and the Commission paricipate in a review of
the "appropriateness" of the PAP and whether "its continuation is necessar," this section
clearly indicates a state-specific focus. Key to these issues is whether this Commission can
legally require the PAP since Qwest is no longer wiling to voluntarly do so. The Liberty
Report does not discuss that theshold legal question. But, for Libery's analysis to be even
marginally relevant to this case it must be assumed that the PAP is legally required--an
assumption that is contrary to law and to the terms of the PAP itself.
21 Id. at 19.
Comments of Qwest Corporation - 8 -
The discussion below wil demonstrate there is no basis under section 271 of the federal
Act for a state commission to continue to exercise regulatory authority over whether the PAP
continues.22 Nor does Idaho law empower the Commission to order the continuation of the
PAP. 23 Qwest does not suggest, however, that the Commission has no role to play in fashioning
a new voluntar approach that wil help serve the interests of ensuring Qwest's continued
performance under the federal Act's standards. That is where the Commission's policy-makng
role could be called into play. For example, to the extent that the comments of the other paries
in this docket raise issues about the CLECs' remedies in the event that Qwest fails to continue to
provide the level of wholesale service required by law, the Commission could review legislative
policy and manage the competing policy objectives to help fashion a reasonable solution. To
advance that discussion, Qwest offers its QP AP-2 plan24 as a new voluntar mechansm that
puts CLECs on the same footing as businesses operating under commercial agreements and
invites the Commission and the parties to make suggestions and participate in the process of
transitioning away from the PAP, which has fulfilled its purose.
Qwest submits that this review offers the Commission the opportnity to review and
consider the changes in the industr since 2002 to determine what is needed in today's
environment, to analyze the scope ofthe state commissions' abilities to mandate performance
assurance mechanisms, and evaluate the QP AP-2 with the objective of encouraging a new
voluntar approach that wil implement state and federal policy.
B. There Is No Legal Basis for Continuing the PAP Absent Qwest's Consent
In embarking on a review of the Idaho PAP that addresses whether it should continue, it
is critical that the Commission look at the legal basis for the Plan. It is that foundation that
determines the Plan's purpose and the Commission's authority in orderng Qwest to take action
with regard to the Plan where Qwest does not consent.
22 See discussion of Qwest v. Ariz. Corp. Comm'n in Section ILC.2 of these Comments.
23 See Section ll.B.2 of these Comments.
24 See id. Section ILF.
Comments of Qwest Corporation - 9 -
1. Federal law does not require a PAP
There is no dispute that the federal Act does not require a BOC (or any entity) to offer a
PAP. In fact, the concept of a "performance assurance plan" is never mentioned in the federal
Act. As the Background section of these Comments indicates, Qwest followed the lead of other
BOCs in voluntarily putting its PAP into place to provide assurance (in as expeditious a maner
as possible) for its post-approval compliance with section 271 and thereby meeting the FCC's
evolving "public interest" test. In approving Qwest's 271 application for Idaho and eight other
states, the FCC made a number of comments that require careful consideration here.
First, the FCC made clear that having a PAP was not required:
In prior orders, the Commission has explained that one factor it may consider as
par of its public interest analysis is whether a BOC would have adequate
incentives to continue to satisfy the requirements of section 271 after entering the
long distance market. Although it is not a requirement for section 271 authority
that a ROC be subject to such performance assurance mechanisms, the
Commission previously has stated that the existence of a satisfactory
performance monitoring and enforcement mechanism would be probative
evidence that the BOC wil continue to meet its section 271 obligations after a
grant of such authority.25
Furherore, the federal Commission explained that having a PAP was not the only method
available to BOCs to provide assurance of non-discrminatory serice.
As the Commission has stated in prior orders, the PAP is not the only means of
ensurng that a BOC continues to provide nondiscriminatory service to
competing carers. In addition to the monetary payments at stake under each
plan, we believe Qwest faces other consequences if it fails to sustain an
acceptable level of service to competing carers, including enforcement
provisions in interconnection agreements, federal enforcement action pursuant to
section 271 (d)(6), and remedies associated with antitrust and other legal
actions.26
The fact that the FCC believed "Qwest faces other consequences" if it failed to provide
nondiscriminatory servce should be remembered as this Commission considers whether the
Idaho PAP should continue. Clearly, the primary implementer of Congress' intent understood
that the PAP did not provide the only, or even the primary, protection that CLECs enjoy under
federal law.
25 Nine States' Order at 26544-26545, ir 453 (emphasis added).
26 Id. at 26548, ir 456.
Comments of Qwest Corporation - 10 -
Finally the FCC addressed the Idaho PAPin paricular as it considered how PAP
remedies interelate to other remedies that may be available to competitors:
With regard to the Idaho PAP, the Idaho Commission asserts that Qwest has
conceded that competitive LECs are not precluded by the PAP from the recover
of non-contractual remedies. Only those remedies that would duplicate those
available under a contractual claim are precluded. As we have noted above,
states have latitude to create plans that ultimately vary in their strengths and
weakesses as tools for post-section 271 authority monitoring and enforcement.27
Once again, as the Commission undertakes its review of whether the Idaho PAP must continue,
it is useful to consider that the FCC understood that the PAP precluded CLEC from receiving
remedies that are ordinarly available under commercial agreements, i.e., contractual remedies.
As is detailed in Section ILF below, Qwest stands ready to replace the PAP with contractual
remedies that have proved highy satisfactory to those entities that are not covered by the PAP
but that are purchasing services from Qwest.
2. A PAP cannot be ordered on the basis of the state law of Idaho.
Just as the federal Act and the FCC's orders provide no basis for ordering Qwest to
provide a PAP, Idaho law is also silent on this topic. The Idaho Legislature in 1997 enacted
Idaho Code § 62-615 (1), which is the only Idaho statute that addresses the subject of the
Commission's regulatory authority in this context. That statute grants authority to the
Commission to "implement the federal telecommunications act of 1996" and to "promulgate
rules and lor procedures necessary to carr out the duties authorized or required by the federal
telecommunications act of 1996." The Idaho statute does not purport to grant any powers in
addition to those outlined for the commission in the federal Act itself. Since the Act makes no
mention of requiring BOCs to provide PAPs, relying on Idaho law as a basis for requiring a
PAP would misconstre the statute.
Review of Idaho law with regard to the regulation of public utilities is consistent with
this conclusion. The Commission has no authority under state law to order the payment of
liquidated damages28 or to directly impose a fine on a regulated entity for violation of a legal
requirement. Cf Idaho Code 61 §§ 701-713 (outlning procedure whereby the attorney of the
27 Id. at 26551, ~ 460 (emphasis added).
28 See e.g., Capitol Water Corporation v. Cole Road Company LLC, Case No. CAP- W -97 -7, Order No.
27179 (1997).
Comments of Qwest Corporation - 11 -
Commission must initiate an action in state distrct court seeking relief in the form of mandamus
or injunction and creating a cause of action for persons or corporations to recover damages from
the utility).
Qwest submits, therefore, that it has no duty under state or federal law to maintain a
PAP. The Idaho PAP is a voluntar offering as explicitly stated in section 17.0. The terms of
that offer provide in section 16.3 that Qwest and the Commission are to engage in a review of
the Plan after Qwest has met the requirements of section 272 and eliminated its separate affiliate
for in region, interLATA service. In the context of that review the Commission must deterine
the scope of its authority to order Qwest to provide a PAP and, absent that authority, to work
with Qwest to find alteratives that are commercially reasonable.
C. The Idaho PAP Was Created to Address the Public Interest Requirement of
Section 271 of the Federal Act and as such Is Not Under the Idaho Commission's
Continuing Regulatory Authority.
.,
There is no support in state or federal law for requiring Qwest to provide a PAP.
Nonetheless, there is no dispute that the PAP was offered in Idaho as a means of satisfying the
FCC's public interest requirement under section 271 of the Act. Because of this history some
may believe that the state commission can order that such Plan, once in place, be continued as
par of the state's role in assuring that the requirements of section 271 are met at the state leveL.
Such a position, however, is contrar to federal law as elucidated by the Ninth Circuit Court of
Appeals.
1. The history of the Idaho PAP demonstrates it was provided by Qwest
to meet the FCC's public interest test under section 271.
Section 271 (d)(3)(C) of the federal Act provides that the FCC must determine that a
requested application of authority to receive interLATA freedoms "is consistent with the public
interest, convenience, and necessity." It is clear from the orders entered by this Commission as
it was fulfilling its consultative role under section 271 that the Commission believed the purpose
of the PAP was to satisfy the FCC's requirements under section 271 of the Act:
Part of the FCC's review of a Section 271 application is to deterine that
granting interLATA authority to the BOC "is consistent with the public interest,
convenience and necessity." 47 U. S.C. §271 (d)(3)(C). To insure the applicant
wil continue to meet the access and interconnection requirements after approval
Comments of Qwest Corporation - 12-
is granted, the FCC has deterined the public interest standard may require a
BOC to have a performance assurance plan (Plan or QP AP) in place.29
Indeed, the Idaho Commission had actively managed Qwest's voluntar PAP fiing as par of
the section 271 process, as it recounted in one of its earlier PAP orders:
Rather than let the Plan stand as filed, however, the Commission determined,
"along with the other states in the Section 271 proceeding, to include evaluation
of the QP AP in the Section 271 process." Order No. 28788, issued July 23,
2001. The Commission asked the Facilitator coordinating the multi-state Section
271 case to receive evidence and conduct hearngs on the Plan, and provide a
written report to the state commissions. In this way, evaluating the QP AP "as
par of the Section 271 requirement wil provide a record for the FCC to
deterine whether Qwest has satisfied the public interest requirements for
Section 271 approvaL." Order No. 2878830
That the Idaho PAP was "par of the Section 271 requirement" is undisputed. The
language of the PAP that was ultimately recommended by this Commission and accepted by the
FCC also states that the PAP was "prepared in conjunction with Qwest's application for
approval under Section 271 of the Telecommunications Act of 1996.,,31 And, as recently as
September 2008 when the Staff sought the Commission's approval to participate in the Regional
Oversight Committee's review of Qwest's PAP, Staff characterized the PAPas "an essential
component of Qwest's successful application to the Federal Communications Commission for
authority to provide interLATA toll services in Idaho pursuant to Section 271. . .,,32
Qwest agrees with the Commission and Staff on the point that the PAP was developed in
conjunction with the 271 process. Specifically, the Idaho PAP was created to satisfy the FCC's
requirement that it provide "probative evidence" that it section 271 application was "in the
public interest." A clear understanding of the origin and purpose of the Idaho PAP helps to put
into perspective the legal and policy questions that are now before this Commission as it
considers Qwest's Petition.
29 Commssion Final Decision on Qwest Corporation's Compliance with Section 271, In the Matter of
US WEST Communications, Inc.'s Motion for an Alternative Procedure to Manage Its Section 271
Application, Case No.USW-T-003 at 3(June 10,2002).
30 Commssion Decision on Qwest's Performance Assurance Plan, id. at 2 (IPUC March 7,2002).
31 Idaho PAP §1.l
32 See Staff Decision Memorandum dated September 22,2008, at 1. (no docket number available).
Comments of Qwest Corporation - 13 -
2. The Ninth Circuit Court of Appeals has ruled state commissions have
no contiuing regulatory authority to act under section 271.
Numerous federal distrct courts have decided that state commissions do not possess
power to determine or enforce section 271 requirements. See Verizon New England, Inc. v.
Maine Public Utils. Comm 'n, 509 F.3d 1, 7(1 st Cir. 2007); (concluding the authority to
determine which elements BOCs are required to provide under Section 271 and the rates for
those elements "is granted exclusively to the FCC"); Illnois Bell Tel. Co., Inc. v. Box, 548 F.3d
607, 613(7th Cir. 2008) ("(T)he state commission's power over (an interconnection) agreement
is limited to the terms in the agreement relating to access under section 251."); Southwestern
Bell Tel., L.P. v. Missouri Public Servo Comm 'n, 530 F.3d 676, 682-83 (8th Cir. 2008) (rejecting
the claim that "states have implied authority to ensure ILECs comply with § 271" in
interconnection agreement arbitration proceedings); Bell-South Telecomms., Inc. v. Georgia
Public Servo Comm 'n, _F.3d _,2009 WL 368527 (11 th Cir. Jan. 26, 2009) (per curiam)
(deciding state commissions are not authorized to implement section 271).
Recently in Qwest v. Ariz. Corp. Comm 'n, 567 F. 3d 1109 (9th cir. 2009), the federal
court of appeals for the Ninth Circuit concured with the four federal circuit courts cited above
in concluding the Act does not confer authority on state commissions to regulate under section
271. The cour stated:
Once an interLATA application is approved, enforcement responsibilties rest
exclusively with the FCC. It is the FCC that determines whether a BOC "has
ceased to meet any of the conditions required for (interLATA service) approval,"
and it "may" issue orders, impose penalties, or retract its approval in response. 47
U.S.C. § 271(d)(6)(A). The FCC also "establish(es) procedures for the review of
complaints" ofBOC noncompliance with Section 271(c)'s approval conditions.
47 U.S.C. § 271(d)(6)(B). And the FCC is the one obligated to "act on such
complaint within 90 days. ,,33
So long as Qwest remained wiling to provide its PAP, the issue of the Commission's
enforcement authority under section 271 was not raised. However, as the Ninth Circuit makes
clear in the above-cited paragraph, it is the FCC, and not the state commissions, that is
empowered to decide if the BOC has "ceased to meet" any of the requirements for section 271
approval. The cour also notes that the FCC is well equipped to manage any such allegation of
33 Qwest v. Ariz. Corp. Comm 'n., 567 F. 3d at I I 17.
Comments of Qwest Corporation - 14 -
noncompliance with procedures for review of complaints, and the ability to impose penalties for
retract approval under section 271.
Idaho law does not grant the Idaho Commission powers greater than those necessary to
"implement" the federal Act34. However, even if state law were seen as providing a basis for
regulation under section 271, the Ninth Circuit opinion determines that such state law would be
subject to federal preemption:
While Arzona law grants the ACC broad powers to make unbundling and
pricing determinations, federal preemption restrcts that power here. We
conclude that, due to conflct preemption, state law cannot empower state
commissions to prescribe or fix rates for Section 271 terms or institute
unbundling requirements previously abolished by the FCC. See AT&T Corp.,
525 U.S. at 378 n.6 ("(I)fthe federal cours believe a state commission is not
regulating in accordance with federal policy they may bring it to heel.,,).35
Finally, the court clarfies that, "Congress 'unquestionably' took 'regulation oflocal
telecommunications competition away from States. . . (w lith regard to the matters addressed by
the 1996 Act. ,,36
The procedural history of the Idaho PAP demonstrates it was a'voluntar offering of
limited duration made in connection with Qwest's 271 application to the FCC. The legal
authorities including but not limited to the above-cited case, make clear the Commission lacks
regulatory authority to require Qwest to continue to offer the PAP.
D. The Liberty Report Should Be Accorded Little Weight by This Commission.
In addition to the fact the Liberty Report does not meet the requirements of section 16.3,
other issues plague the Report.
1. The procedural history of the Libert Report demonstrates it was il-
conceived.
The idea of retaining Libery Consulting to pedorm a review of Qwest's PAPs on a
multi-state basis appears to have been initiated by state commission staff members of the
34 See Idao Code § 62-615.
35 Qwest v. Ariz. Corp. Comm 'no at 1118.
36 Id. at 1 I 18-1 I 19 citing MCI Telecomm. Corp. v. Bell Atlantic-Pennsylvania, 271 F.3d 4919,510 (3d
Circuit 2001)( "Regulating local telecommuncation competition under the i 996 Act. . . is an activity in
which states and state commssions are not entitled to engage except by the express leave of Congress.").
Comments of Qwest Corporation - 15 -
"
informal Regional Oversight Committee (ROC).37 The ROC review was originally envisioned
as a "multi-state collaborative review,,38 that would "afford those CLECs that have limited
resources the opportity to paricipate in all of Qwest's 14 state regions.,,39 Asingle page
"Scoping Document" prepared by ROC Staff members and containing six bulleted paragraphs
recommended that Liberty Consulting "also provide draft recommendations as to the curent
effectiveness, value and usefulness of the performance plan and PIDs in relation to their
intended purose and fuction as well as the usefulness of some or the entire plan and PIDs
continuing including possible modifications to such.,,40 The Scoping Document went on to
suggest that the consultant's "baseline document" could be used by varous commissions in
appropriate dockets or "for collaborative discussions between the varous Commission Staffs,
Qwest and the CLECs,,41
The ROC review, however, could not proceed as planned since Qwest declined to
paricipate in a multi-state review process for its P AP.42 This meant the possibilty of
collaboratively negotiated PAP changes to be offered up to state commissions for approval
would not materalize. Nevertheless, the ROC members proceeded to hire Liberty Consulting to
conduct a "review" of the PAP on a multi-state basis.
Despite Qwest's protests of the unsuitably of the review contemplated by the ROC,43 the
issue of whether the review should be conducted for Idaho was never directly addressed by ths
Commission in this docket. Instead, while Qwest protested the inherent delay in waiting for
Liberty to conduct the review, the actual authorization for Staffs paricipation in the ROC
review was placed on the Commission's decision agenda for September 29,2008 under the
37 The ROC is an inorml group of regulators that has no independent regulatory authority and no
jursdiction to compel Qwest or any other pary to take action. Since the ROC was originally created its
focus has changed from issues exclusive to Qwest to an industry focus.
38 See Staff Comments fied herein on July 7, 2008, Attachment i.
39 Id. at 3.
40 Id., Staffs Attachment 1.
41 Id.
42 See Qwest Corporation's Response to Staff Motion to Extend Comment Period fied herein on
August 4, 2008, at 4-5; See also Qwest Attachment B to these Comments.
43 Id.
Comments of Qwest Corporation - 16 -
"Matters in Progress" and without the assignent of a docket number to the item.44 In addition,
Staffs Decision Memorandum that accompanied that item recommended that the Commission,
inter alia, Hopen a docket to review Qwest's P APIPIDs,,,45 even though the present docket
seeking review of the PAP under section 16.3 had been open for four and a half months.
Once again the disconnect between section 16.3 requirements for review and the ROC
process that would ultimately yield the Liberty Report is obvious. Worse yet is that there was
no opportnity in this record46 for Qwest to provide input as to what issues should be included
in the proposed review. And, there is no indication that the Idaho Commission itself provided
any instrction or guidance to Liberty. This lack of direction from the Commission and lack of
input into the strcture of the review conducted underscores the diffculty of using the Liberty
Report in a docket in which "the Commission and Qwest shall review the appropriateness of the
PAP and whether its continuation is necessar.,,47
The Liberty Report has now been placed in this docket for purposes of comment by the
paries by stipulation.48 Although Qwest agreed to the Report's limited use, the Company has
not waived its procedural and due process objections to the Report should its use be expanded in
this docket. 49
44 See id. Qwest Attachment A.
45 See Staff Decision Memorandum dated September 22,2008, at 4. (no docket number available).
46 See Attachment B to these Comments. By letter dated August 15,2008, Qwest Senior Vice
President, Steve Davis, informed the ROC that Qwest would not agree to paricipate in a QP AP Analysis
Collaborative and listed among the Company's concerns that the question before the state commssions
was "whether the QP AP's continuation is necessar" and that the PAPs called for the reviews to be
undertaken by "the Commssion and Qwest" and not in a multi-state collaborative review. These
comments were uneeded by the ROC, and Liberty makes no mention of the standard of review required
by the PAPs in its Report.
47 Idaho PAP §16.3.
48 See Stipulation and Jointly Submitted Procedural Schedule, fied herein on July 29,2009.
49 These objections include, but are not limited to, the following. There is no formal hearng process in
which the Report wil be introduced into evidence. There is no foundational witness. There is no
opportty to raise foundational objections to its introduction. There is no opportty for discovery.
There is no opportty for cross-examination of any witness on the substace of the Report. There is no
opportty for rebuttal testimony and/or evidence in regard to the allegations made in the Report.
Comments of Qwest Corporation - 17 -
2. Liberty Consulting Was Not Provided with Proper Guidance as to
the Purpose of the PAP
The Liberty Report repeatedly states that the consultants were charged with creating
draft recommendations concering ''the current effectiveness, value, and usefulness of the PAPs
and PID measures in relation to their intended purpose andjunction."so However, nowhere in
the Report does Liberty articulate what it understands as the "intended purpose" or "fuction" of
the PAP. Nor does the Liberty Report or any document shared with Qwest indicate that any
commission provided any guidance to the consultant on this critical point. Moreover, the phrase
Liberty uses to descrbe its charge ("the current effectiveness, value and usefulness") is not the
standard that this Commission is required to use under section 16.3 ofthe Idaho PAP, i.e., "the
appropriateness of the PAP and whether its continuance is necessary."
There is an important distinction between intended purose of the overall PAP and the
purpose of the "PID measures." Qwest does not dispute that Liberty performed a detailed
analysis of certain PID measures to determine whether they were capturing the data they were
devised to capture and whether they were fuctioning as intended. The larger question of the
purose of the PAP and its continued necessity, however, required a level of analysis, including
an examination of the legal precedents, which is nowhere contained in the Report.
The Idaho PAP is itself silent as to its purpose, save for the words "performance
assurance" in its title. In paragraph 1.1, the PAP states that it was "prepared in conjunction
with Qwest's application for approval under Section 271 ofthe Telecommunications Act of
1996 (the "Act") to offer in-region, long distance service." The Liberty Report, however, does
not evaluate the PAP in the context of section 271, nor does it discuss the impact of Qwest's
entry into the "in-region long distance market." And, apart from statements that the PAP
continues to provide "incentive" to Qwest to performS1 (a topic that is addressed in these
Comments below), there is no analysis of the effectiveness, much less the necessity, of the PAP
as a performance assurance tool.
Review of the Report itself reveals some of the mistaken views of the PAPs' purose
that pervade the Libery analysis. For example, on page 3 Liberty states that it reviewed ''te
burden on Qwest of maintaining the PAPs and whether this burden outweighs the advantage of
50 See e.g., Report at 2,8, and 20 (emphasis added).
51 See id. at 56.
Comments of Qwest Corporation - 18 -
protecting competitors" (emphasis added). Nowhere, in the federal Act, the orders of the FCC,
or state law is "protecting competitors" articulated as a purose of the PAP or a responsibility of
Qwest. Qwest is responsible under federal law to provide non-discriminatory service to its
CLEC customers.
52 This specific legal requirement does protect competitors; however that
requirement canot be expanded into a general obligation to "protect" competitors.
Elsewhere, the Liberty Report. describes its analysis as evaluating whether the PAP is helpfu in
"maintaining a competitive market'53 or important to "continuing to maintain competition.,,54 Such
analysis, while perhaps consistent with the broad charge given Liberty by the ROC, is irrelevant to the
question before this Commssion. The purose of the PAP was simply to help assure that the wholesale
market remained open after Qwest was granted 271 freedoms. Seven years later there is no dispute that
the required openness has been achieved and maintained. The PAP, therefore, has achieved its purose.
While any number of other measures could be "helpful" or even "important" to competitors, there is no
evidence that such measures are required or necessary.
The lack of a proper foundational standard by which the PAP was to be evaluated constitutes a fatal
flaw in the Liberty Report analysis, at least in so far as it pertains to the issues in ths docket. Liberty's
comments, conclusions, and recommendations are compromised, because they are based upon unstated,
unsubstantiated, unauthorized opinons of what constituted the "intended purose and fuction" of the
Idaho PAP.
3. The Liberty Report draws conclusions about the PAP that are based
on standards not provided in law or the history of the PAP and that
are irrelevant to a review under section 16.3.
On page 4 the Liberty Report states:
Based on analysis presented in this report, Liberty concludes that the PAPs are
stil serving a useful purpose in all the paricipating states. Although Qwest's
largest competitors are the wireless and cable companies, which are less
dependent on Qwest's wholesale servces, there continues to be a signifcant
group ofCLECs that rely heavily on Qwest's wholesale services to conduct their
business, and there are limited readily available alternatives to Qwest's
wholesale service for these CLECs. (emphases added)
52 47 U.S.C. § 251.
53 Report at 23.
54 Id. at 56.
Comments of Qwest Corporation - 19-
This paragraph contains a number of misconceptions that are key to the analysis that
should be conducted by this Commission. First, as mentioned above, although Liberty was
charged by the ROC to review the "usefulness" of the PAP, section 16.3 requires that the
Commission review its "necessity"-a far different standard. The paragraph also sumarzes
the varous reasons Liberty believes the PAPs should continue - all of which reasons are
irrelevant or without basis.
Liberty cites CLEC reliance on Qwest's serices as the chief reason the PAPs should
continue. Nevertheless, Liberty does not explain how it deterined the extent ofCLEC reliance
or its relationship to the continuance of the PAP. 55
Whether CLECs "rely heavily" (or at all) on Qwest's wholesale services has never been
articulated by any legal or regulatory authority as a purpose of or criterion for evaluating the
PAPs. Instead, the FCC described the their purose as ensuring that markets remain open56 after
Qwest entered the interLATA long distance market. The question of whether the market wil
remain open has been affrmatively answered by actual market experience over the past seven
years.
Furhermore, substituting "CLEC reliance," for the correct formulation of "market
openness" as the appropriate standard for evaluating the Idaho PAP results in the absurd
conclusion that the PAP could be discontinued only when the market disappeared entirely i.e.,
when there were no longer any CLECs purchasing (i.e., "relying on") any Qwest serces. But,
of course, it was never the intent of the FCC, or this Commission that Qwest would be burdened
with the PAP regardless of the openness of its network or the quality of its performance until the
last CLEC disconnected its service. Had it been otherise, the FCC would have so stated in its
55 In an apparent effort to bolster its reliance arguent, on page 4 Liberty cites examples from Hawaii
and northern New England that it says "demonstrate the severe impact on competitors when an
incumbent local company fails to provide adequate wholesale performce." Incongrously, however,
Liberty continues on page 4 to admt, "The circumtances of those cases are very different from what the
CLECs face in Qwests operating tertory." Then, on page 55 Liberty elaborates that point with the
statement, ''the causes of this poor wholesale performce was related to a change of ownership and
operation of the local exchange businesses in these cases, and thus they are unelated to the current
situation in the Qwest terrtory." Despite their inapplicability, Liberty cites the Hawaii and New England
examples for its conclusion the PAPs "help assure that the correct incentives are in place to help prevent
such conditions occurng." Libery offers no support for this conclusion, nor does it state whether
PAPs were in place in the examples, or how PAP provisions could have in any way prevented the
problems that actually arose.
56 Nine States' Order at il453.
Comments of Qwest Corporation - 20 -
orders, and the PAPs themselves would not have been approved by state commissions with
language that called for their review and discontinuance while the CLEC wholesale market
continued to exist. 57
Likewise, whether there are "readily available alteratives" to Qwest facilities has never
been articulated as a criterion for the existence of the PAPs by any valid authority. Again, the
legal standard to which Qwest must adhere is the provision of non-discrminatory service while
maintaining an open wholesale market. It is an entirely different matter to suggest that Qwest
must continue to be subjected to the punitive and burdensome provisions of the PAP simply
because third paries have not provided "readily available alteratives" to Qwest's high quality
services in all areas.
4. The Libert Report overlooks the signifcance of the FCC's decisions
deregulating broadband servces.
Several times the Liberty Report cites the fact that CLECs provide significant
competition to Qwest "in such important markets as broadband" as a reason the PAPs should
continue. 58 In makng this statement, Liberty appears to have overlooked that fact that the FCC
has taken a number of important steps aimed at easing, if not in many cases eliminating, the
regulatory requirements for broadband facilities and services. 59
In the Triennial Review Order, the FCC determined, that incumbent LECs do not have to
unbundle certain broadband elements, including fiber-to-the-home (FTTH) loops in greenfield
situations, broadband capabilities ofFTTH loops in overbuild situations, the packet-switched
capabilities of hybrid loops, and packet switching.6o In subsequent reconsideration orders, the
57 For example, the position that CLEC reliance on Qwest facilities precludes discontinuance of the
PAP is patently inconsistent with the provision in section i 6.3 of the Idaho PAP, which states the PAP
may be immediately withdrwn in the event Qwest exits the interLATA market.
58 See e.g., Report at 86.
59 Qwest Petition for Forbearance Under 47 u.s.c. § 160(c) from Title II and Computer Inquiry Rules
with Respect to Broadband Services, Memorandum Opinion and Order, FCC 08-168 (released August 5,
2008) at ~r 8 ("Qwest Broadband Forbeaance Order").
60 Review a/the Section 251 Unbundling Obligations of Incumbent Local Exchange Carrers,
Implementation of the Local Competition Provisions of the Telecommunications Act of 1996,
Deployment of Wire line Services Offering Advanced Telecommunications Capabilty, CC Docket Nos.
01-338,96-98,98-147, Report and Order and Order on Remand and Furer Notice of Proposed
Rulemng, 18 FCC Rcd 16978, 17141-53, irir 272-95, 17323, ir 541 (2003) (Triennial Review Order),
corrected by Triennial Review Order Errata, 18 FCC Rcd at 19022, ir 26, aff'd in part, remanded in
Comments of Qwest Corporation - 21 -
FCC extended the same unbundling relief to encompass fiber loops sering predominantly
residential multiple dwelling units (MDUs) and fiber-to-the-curb (FTTC) IOOpS.61 Moreover, in
the Section 271 Broadband Forbearance Order, the Commission granted the BOCs forbearance
relief from the requirements of section 271 specifically for the broadband elements for which it
had granted unbundling relief under section 251.62 Where Qwest is no longer required to
provide a service as an unbundled element, it is no longer subject to the PAP.
In the Wireline Broadband Internet Access Services Order,63 the FCC generally
eliminated the Title II and Computer Inquiry requirements applicable to wireline broadband
Internet access services offered by facilities-based providers.64 The FCC granted this relief for
wireline broadband Internet access serice and its underlying broadband transmission
component, whether that component is provided over all copper loops, hybrid copper-fiber
loops, an FTTC or fiber-to-the-premises (FTTP) network, or any other type of wire line
facilities.65 As a result of this deregulation, the federal Commission removed DSL (a broadband
service) from nondiscrimination requirements and, therefore, removed the serice from
coverage under the PIDs and PAPs.
part, vacated in part, United States Telecom Ass 'n v. FCC, 359 F.3d 554,564-93 (D.C. Cir. 2004)
(USTA Ii), cert. denied, 543 U.S. 925 (2004), on remand, Unbundled Access to Network Elements,
Review of the Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers, WC Docket
No. 04-313, CC Docket No. 01-338, Order on Remand, 20 FCC Rcd 2533,2541, ir 12 (2004) (Triennial
Review Remand Order), affd, Covad Communications Co. v. FCC, 450 F.3d 528 (D.C. Cir. 2006).
61 Review of the Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers;
Implementation of the Local Competition Provisions of the Telecommunications Act of 1996;
Deployment of Wire line Services Offering Advanced Telecommunications Capabilty, CC Docket Nos.
01-338,96-98,98-147, Order on Reconsideration, 19 FCC Rcd 20293,20297-20303, paras. 9-19 (2004)
(Triennial Review FTTC Reconsideration Order).
62 Petitionfor Forbearance of the Verizon Telephone Companies Pursuant to 47 US.c. § 160(c); SBC
Communications Inc. 's Petitionfor Forbearance Under 47 Us.c. § 160(c; Qwest Communications
International Inc. Petitionfor Forbearance Under 47 Us.c. § 160(c); Bel/South Telecommunications,
Inc. Petitionfor Forbearance Under 47 US.c. § 160(c), WC Docket Nos. 01-338, 03-235, 03-260, 04-
48, Memorandum Opinion and Order, 19 FCC Rcd 21496 (2004) (Section 271 Broadband Forbearance
Order), aff'd, EarthLink, Inc. v. FCC, 462 F.3d 1 (D.C. Cir. 2006) (EarthLink v. FCC).
63 Appropriate Frameworkfor Broadband Access to the Internet over Wireline Facilities, CC Docket No.
02-33, Report and Order and Notice of Proposed Rulemaking, 20 FCC Rcd 14853 (2005) (Wireline
Broadband Internet Access Services Order), aff'd, Time Warner Telecom Inc. v. FCC, 507 F.3d 205 (3rd
Cir. 2007) (Time Warner Telecom v. FCC).
64 Id. at 14872-915, irir 32-111. The FCC found these servces to be information services. See id. at
14909, ir 102.
65 See id.
Comments of Qwest Corporation - 22 -
Although, the Wireline Broadband Internet Access Services Order did not encompass
other wireline broadband servces, such as stand-alone Asynchronous Transfer Mode service
(ATM), Frame Relay servce, Gigabit Ethernet serice, and other high-capacity special access
services66 these servces were addressed in the Qwest Broadband Forbearance Order, where the
FCC granted in par Qwest's requests for forbearance from dominant carer regulation of
Qwest's existing packet-switched broadband telecommunications services and its existing
optical transmission services.67 The Commission also granted Qwest relief from its obligations
under the Computer Inquiry rules in connection with these services, conditioned on its
compliance with the Computer Inquiry obligations that apply to all non-incumbent LEC,
facilities-based wireline carers.68
These numerous decisions of the FCC entirely undercut Liberty's conclusion that CLEC
provision of broadband serices in competition with Qwest requires continuation of the PAP.
Instead, these decisions demonstrate that the federal Commission has chipped away at the
applicabilty of the PAP to broadband services until there is nothing left. The application of
parity measures (such as those contained in the PAPs) to broadband services is anathema to the
deregulatory approach the FCC has taken to spur the deployment of broadband. Whle Libery
is correct that CLECs do provide competition to Qwest in the important broadband market,
Liberty ignores the increasing extent to which that competition is based on serices that are not
subject to the PAP.
E. Continuation of the PAP as an Incentive for Qwest to Provide Good Servce Is
Neither Appropriate Nor Necessary.
1. Qwest has continued to satisfy the requirements of section 271 since
entering the long distance market.
The FCC in its order granting 271 freedoms to Qwest in Idaho stated, "one factor
66 See id.
67 Qwest Broadband Forbearance Order, 2008 FCC LEXIS 8123, irir 20-25.
68 Id. at irir 54-60.
Comments of Qwest Corporation - 23 -
(the FCC) may consider as par of its public interest analysis is whether a BOC would have
adequate incentives to continue to satisfY the requirements of section 271 after entering the long
distance market.,,69 Seven years ago, how the markets would develop and what incentives
would drive the industr were open questions. Today the answers are well known.
Over the past seven years Qwest has consistently provided excellent service to CLECs.
Average Idaho performance since 2003 has been over 99%.70 Furhermore, there is no dispute
that the long distance market is more competitive today than it was before Qwest was granted
entry. Today Qwest faces significant competition, not just from CLECs who were covered by
the PAP, but from wireless, cable and VoIP providers. Even voice service itself is subject to
competitive forces unimagined just seven years ago in the form of text messaging, Twitter and
social networking.
Although Qwest has multiple concers about the foundation of the Liberty Report and
the direction of its analysis, there is no dispute that it looked at Qwest's performance under the
standards provided by the PAPs. In doing so Liberty did not find that Qwest had failed to
maintain an open market or that it has discriminated in the provision of its serices. Nor did
Liberty find any defect of any kind in Qwest's service quality with regard to Idaho. In fact, of
the eleven states that paricipated in the ROC review, Tier 1 and Tier 2 payments under the PAP
were lowest in Idaho.71
Furthermore, Liberty concedes that from a statistical perspective, the rate at which
Qwest misses measurements is within acceptable bounds of statistical eror (5%).72 This means
Qwest is likely making substantial payments on what are essentially erors in statistical testing
due to natural, random varation. As Liberty acknowledges on page 40 of its report:
(F)ailure rates of below five percent can be considered to be arifacts of the
statistical framework and not a tre indication that Qwest is providing
substandard service.
69 Nine States' Order, ir 453.
70 See Qwest Petition ir 36
71 Report at 25, Figue II-A-2.
72 Report at 39-40.
Comments of Qwest Corporation - 24 -
The Report's analyses support this statement and show that for the last four years in all but one73
PID category, the failure rate throughout Qwest territory is less than five percent (and all would
be less than five percent when accounting for PID design problems). Nevertheless, Liberty
inconsistently recommends continuation of the PAPs in all states and retention of metrcs in
those categories.
2. The assumption that PAP incentives have worked and therefore need
to remain is unverifed and ilogicaL.
The Libery Report acknowledges that Qwest's service to wholesale customers has
improved over the time the PAPs have been in place,74 yet it ignores this service quality in
recommending that the PAPs be maintained. Typical of its analysis is this passage, from page 4
of its Report,75 in which Libery asserts:
Despite the improvement in Qwest's performance and reduction in PAP
payments, the PAP incentives continue to be important in helping to ensure that
Qwest's performance level does not deteriorate, because Qwest's wholesale
services remain critical for the CLECs stil relying on them.
Exactly how PAP incentives have actually worked or how they wil in the futue "help ensure
that Qwest's performance does not deteriorate" is not explained or demonstrated by facts
presented in Liberty's Report. In fact, in the same paragraph in which it offers this
unsubstantiated conclusion about PAP incentives, Liberty admits the connection between the
PAP incentives and performance is difficult to establish:
Although it is difcult to verif from historical data, the incentive provided by the
PAPs has likely contrbuted to this performance improvement. 76
The fact is there is absolutely no basis provided in the Report that ''the incentive
provided by the PAPs has likely contrbuted to this performance improvement." Not only was
this key point apparently "difficult to verfy" as Liberty stated, but nowhere does the Report
73 The one Pil category that appears to exceed the 5% level is Biling. In the most recent year, it was
less than 5% (reflecting the resolution of problems with the design and party standard of the BI-3 Pil.)
Taking into account the Pil flaws, the other three years would also have been less than 5% failure rate,
resulting in all Pil categories being less tha 5% failure rate.
74 Report at 4.
75 See also Report at 56.
76 Report at 4 (emphasis added).
Comments of Qwest Corporation - 25 -
indicate any attempt to verify it. Nevertheless, even though the link between PAP incentives
and pedormance improvements in the past is unsubstantiated, Liberty tries to stretch that link to
support the even more tenuous conclusion that PAP incentives remain important for the futue.
Liberty's readiness to attbute Qwest' s performance improvements to the PAP
incentives leads to the stunnngly ilogical conclusion that Qwest's actual performance is
irrelevant to whether the PAP must continue. The arguent stated in its most simple terms
defies logic: If Qwest' s service improves the PAP incentives are working and should stay in
place. On the other hand, had Qwest's service deterorated, it is unthinkable that Liberty would
have concluded that Qwest should be allowed to discontinue the PAP. Therefore, regardless of
how well Qwest performs, the PAP must continue. There appears to be nothing Qwest could do
to demonstrate its commitment to good service, so long as CLECs "rely" on Qwest services.
3. The incentives in operation in today's market are unlie anything
that was imagined when the PAPs were created.
Liberty's attempt to extrapolate from past positive experience under the PAP would not
be so troubling had Liberty analyzed the incentives at play in today's industry. It did not.
While Liberty notes that Qwestfaces competition from other competitors today,77 Liberty failed
to discuss how such a change would impact Qwest and the incentives it mayor may not need to
comply with legal requirements. In fact the Report did not offer any detailed analysis ofthe
supposed incentive value of the PAP. And, while citing industr changes, Liberty apparently
overlooked how the hugely altered business and regulatory environments that have developed
over the years have changed how the incentives operate.
At the time that Qwest was poised to enter the interLATA market strong financial
incentives to "assure performance" were thought necessary to overcome what was seen as the
BOC's business incentives to delay, or even thwart, CLEC competition. Today the business
incentives themselves assure performance. There is no evidence that if Qwest were to provide
low-quality service to CLECs, Qwest would benefit. Instead, Qwest and the CLECs are aligned
in their competitive battle with cable and wireless competitors in attempting to retain customers
through excellent service, innovative products and reasonable prices.
77 See e.g., Report at 55.
Comments of Qwest Corporation - 26 -
For example, whereas seven years ago a CLEC order could fairly be viewed as a
competitive loss for Qwest, today, given line losses to wireless and cable competitors, a CLEC
order presents an opportunity for Qwest to generate revenue from its existing network. Even if
a given CLEC end user is a former Qwest customer, so long as that customer stays on the
network as a CLEC customer, Qwest manages to gain some revenue. If the customer abandons
the network for a wireless or cable competitor, Qwest loses all the revenue that customer
generated.
The degree to which the market has changed in the years since the PAP was adopted is
sometimes easy to overlook. Seven years ago CLECs and competitors could be forgiven for
thinking Qwest might choose to provide poor service to gain competitive advantage. After all,
at that point there was relatively little experience with BOCs serving CLECs as wholesale
customers and no experence with what BOC entry into the long distance market would yield.
Certainly the BOCs and regulators alike believed that interLATA long distance presented a
significant business opportnity for the BOCs.
It was that BOC opportnity that drove the notion that large economic incentives were
desirable, or even necessar, to force Qwest to into compliance with the law. In fact, when the
PAP was adopted, there was concer that the financial "incentives" (penalties) might not be
large enough, and that the cap of 36% of ARIS Net Return-an amount totaling $ 28 milion
for Idaho for the year 2003 -might give Qwest the opportnity to simply pay (and continue to
reap lucrative long distance revenues) rather that perform. 7879 Seven years later, however,
Qwest has paid $583,000 in total over all the years under the Idaho PAP. While this amount is
minute compared with the expectation of what would constitute an adequate incentive as
represented by the anual cap, it constitutes a substantial burden to Qwest given its excellent
performance over that period.
78 Idaho PAP §12.1.
79 See e.g., Commission Decision on Qwest's Peiformance Assurance Plan, In the Matter of us WEST
Communications Inc. 's Motion for an Alternative Procedure to Manage Its Section 271 Application,
Case No. USW - T -00-3 at 5 in which CLECs are quoted as arguing that a cap of 36% of Qwest s anual
net income (estimated at thàt time to be $24 million) would "result in under compensation ofCLECs.";
See also Comments of the Commission Staff in the same docket dated November 2,2001 at 5-6 (''the 36
percent cap must be an incentive for Qwest to meet performance standards and avoid penlties and not
simply become a cost of doing business for the Company, which would not deter substandard
performance. ")
Comments of Qwest Corporation - 27 -
There is no indication in the Liberty Report or anywhere else that Qwest has attempted
to avoid perormance by paying PAP penalties, much less that it has attempted to thwar
competition by discriminating against CLECs. Instead, Qwest asserts that the evidence shows
that Qwest already has sufficient incentives without the PAPs to comply with the Act, that
Qwest has complied with the Act and that it is committed to continuing to do so not only
because it is the law, but because providing good service to its CLEC customers aligns with
Qwest's financial incentives.
F. Qwest Offers QPAP-2 as a New Voluntary Mechanism for Performance Assurance
and Invites the Commission and the Parties to Comment and Participate in the
Process of Transitioning Away From the Origial PAP.
In light of the competitive realities discussed above Qwest values CLECs as customers
and important parters on its network. Therefore, Qwest offers a new transitional approach for
perormance assurance in the form of QP AP-2, 80 and proposes that the Commission and parties
recognze this as a replacement for the curent Idaho PAP and as an appropriate method for
transitioning away from that plan. The approach reflected in QP AP-2 represents a shift from
self-executing penalties to a focus on compliance and proactive resolutions of problems in the
form of a specific, responsive resolution plan. QP AP-2 also represents a shift from a complex
multitude of detailed measurements and standards to a streamlined approach that looks at the
most important metrcs and standards. Finally, the QP AP-2 offers a resolution to the issues in
this docket. Qwest believes that in accepting this approach, the Commission may find it
unnecessar to rule on the legal basis or framework for continuing the self-executing penalties
in the Idaho PAP.
1. Qwest's .proposed QP AP-2 focuses on assuring Qwest's compliance
with key service quality measures and on committig to explicit,
responsive resolution steps to assure problems are solved.
Qwest's QP AP-2 consists of measurements, standards, and customer remedies that focus
on the most important dimensions of service quality in a maner that is consistent with service
quality regulation in most states, large and small. In so doing, QP AP-2 provides an effcient,
streamlined approach to service quality that, while relatively simple, complements market forces
80 See Attachment C to these Comments, which contains the Qwest Perormance Assurance Plan-2
("QP AP-2").
Comments of Qwest Corporation - 28 -
in helping assure quality serice and provides timely responses to serice quality problems.
Most importantly, QP AP-2 shifts the focus from the penalties of the curent Idaho PAP to
sensible processes to help assure Qwest complies with the performance requirements of the Act.
2. In addition to QPAP-2, there are other factors that help assure
customers of quality service.
Market forces represent immense incentives to provide quality service; indeed they
represent the most signficant incentives in Qwest's business. Available evidence, including the
Liberty Report, shows a general and improving pattern of Qwest performing above regulatory
standards. The competitive market demands that Qwest maintain and improve its service
quality and responsiveness in expanded and more customer-specific ways. Qwest's steady loss
of access lines gives it powerfl incentive to provide high quality service to help reduce or avert
such losses - including serving CLECs well to help keep customers on Qwest's network.
3. Measurements: QPAP-2 focuses on the most important service
quality dimensions of ordering process timeliness, installation of
services, maintenance, and response to trouble reports (repair).
Qwest is offering measures that focus on the most important service quality dimensions.
For ordering process timeliness, Qwest proposes to report "Firm Order Confirmation
Timeliness" (FOC). For installation of services, QP AP-2 calls for reporting "Installation
Commitments Met" (ICOM) and "Order Installation Interval" (INST). For maintenance, the
Plan calls for reporting "Trouble Rate" (TR). For repair of troubles, the measurement reported
wil be "Troubles Restored within Estimated Intervals" (TREI). Each of these wil produce
monthly measurements that are reported quarerly.
a) Firm Order Confirmation Timeliness (FOC)
FOC is a monthly measurement that reports state-specific activity. Ths measurement
applies a benchmark standard of 90% within targeted Foe interals (as specified in the
measurement definitions). FOC Timeliness is defined as percentage of Local Serce Requests
(LSRs) that are provided to CLECs within specified intervals. The measurement calculates
FOC Timeliness by dividing the count of LSRs provided within the specified interals by the
count of all LSRs processed in a reporting period. FOC includes all LSRs submitted through
Comments of Qwest Corporation - 29 -
specified electronic interfaces in the reporting month, subject to specified exclusions similar to
those in the FOC PID (PO-5) of the curent QPAP.
b) Installation Commitments Met (ICOM) and Order Installation
Interval (lNST)
ICOM is a monthly measurement that reflects state-specific, statewide results. An
installation order is defined as a customer request for the installation of anew, transferred, or
changed service. An installation commitment is defined as the due date communicated to the
customer that the requested service wil become available for the customer's use. This
measurement applies an 80% benchmark to the statewide result. ICOM calculates the
percentage of orders installed on or before the due date communicated to the customer by
dividing the total number of installation orders, for which the due date was met, by the total
number of installation orders completed/closed in the reporting month. ICOM focuses on orders
for specified products - namely, four types of unbundled loops: Analog, 2-Wire Non-Loaded,
DS1-capable Loops, and Enhanced Extended Loops-DS1 (EEL-DS1). Installation orders
included in this measurement are those requesting new, transferred, or changed loops, subject to
specified exclusions typical of the OP-3 PID.
INST is a monthly measurement that reflects state-specific, statewide results.
Installation orders and products covered are defined as for ICOM. This measurement applies a
benchmark standard of 6 business days to the Analog Loop and a parity standard to the other
loop products. The installation interal for each order begins with the date/time an order is
received by Qwest to the date/time it is completed. INST calculates the average installation
interval, summing the individual installation interals for all the orders and dividing it by the
total number of installation orders completed/closed in the reporting month. INST focuses on
orders for the same products specified in ICOM - Analog, 2 Wire Non-Loaded, and DS1-
capable Loops, and Enhanced Extended Loops-DS1 (EEL-DS1). Installation orders included in
this measurement are those requesting new, transferred, or changed loops, subject to specified
exclusions typical ofthe OP-4 PID.
c) Trouble Rate (TR)
The TR measurement is a state-specific, monthly measurement that evaluates the extent
to which the installed base of specified products experences troubles in the reporting month. It
Comments of Qwest Corporation - 30 -
applies a benchmark standard of 5%, which is similar to retail trouble report rate benchmarks
seen in varous state rules. TR focuses on all troubles reported on specified products (the same
four as in the Installation measurements, ¡COM and INST) closed within the reporting month.
TR is calculated by dividing the count of trouble reports by the number of products in serice in
the reporting period, subject to exclusions typical ofthe latest versions ofthe MR8
measurement
d) Troubles Restored within Estimated Intervals (TREI)
As with the ICOM measurement, TREI is a state-specific, monthly measurement. The
TREI measurement evaluates the extent to which Qwest clears specified types of trouble reports
within specified intervals by specified product (i.e., 24 hours for Analog and 2- Wire Non-
Loaded Loops; 8 hours for dispatched troubles on DSI-capable Loops and EEL-DS1; and 4
hours for non-dispatched troubles on the latter two products). TREI focuses on specified trouble
report types that are closed in the reporting month. TREI is calculated by dividing the number
of trouble reports cleared within the specified timeframes by the total number of such trouble
reports, subject to specified exclusions that are typical of repair timeliness measurements. This
measurement applies an 80% benchmark standard to statewide results.
4. Reportg: QPAP-2 calls for reportg the monthly measurement results on
quarterly basis.
Within five business days after the end of the month following each calendar quarer,
Qwest wil report the monthly measurement results for that quarer for each of the
measurements. This approach aligns with the operational process, discussed below, in which
measurement results from the first month in a quarer can be reviewed during the second month
and acted upon if necessar in the third month.
5. Responsive Resolution Process: Under QPAP-2, the Responsive Resolution
Process provides a focus on solving problems in a timely, good-faith manner,
using specifc responsiveness commtments.
Based on the measurements and standards described above, this aspect of QP AP-2 is
ver much like commercial agreements that have been successful in offerng and managing
Comments of Qwest Corporation - 31 -
products like QLSP (Qwest Local Services Platform)81 to CLECs. The Responsive Resolution
Process establishes four levels of responsive actions to assure serice quality and resolve
problems. Under the first or "day-to-day" response level, Qwest commits good-faith effort to
monitor and maintain serice quality levels that satisfy or better the standards specified in the
QP AP-2. Beyond the day-to day level, there are three tiers of responses, designated as Response
Levels 1, 2, and 3, which provide for increasing escalation of action and executive attention.
a) Response Levell
This level represents the most basic reaction to missed standards. It requires Qwest to
identify the contributing factors and alternative solutions and then take corrective action
accordingly, as soon as practicable. Where corrective action is called for, Qwest wil develop,
document, and implement an Action Plan, as soon as practicable, ina good-faith effort to
mitigate or resolve the issue. Such an Action Plan identifies corrective steps selected to remedy
the problem, the resources and process required to implement the step, the timelines involved in
the implementation, and the maner in which the Plan wil be monitored to determine whether it
succeeded.
b) Response Level 2
If standards continue to be missed after reaching Level 1, or in the case of a single yet
signficant performance shortfall, Level 2 is invoked. This response level applies a higher level
of attention and targeted resolution than under Levell. Specifically, Response Level 2 calls for
Qwest to evaluate shortfalls, if any, in the prior resolution steps and to implement necessar
changes, which includes documenting the changes in the Action Plan descrbed in Level 1
above. The matter wil also be escalated internally to vice president level for additional
attention, priority, and support.
Further, Qwest wil inform affected CLECs (via password-protected web po stings or,
alternatively, via email to pre-designated representatives) about the Action Plan, its elements,
and timeframes, along with expected outcomes, and wil take into consideration applicable
81 QSLP is a wholesale offerig that Qwest made available as a replacement for its UN-P unbundled
servce element after it was removed from the operation of the PAP by the FCC's TRO and TRO
decisions. See Report at 33. QSLP is now offered under commercial agreements instead of the PAP.
Comments of Qwest Corporation - 32 -
obserations and comments received from CLECs through their communcations with assigned
Qwest account teams.
c) Response Level 3.
Level 3 is invoked when, after Level 2 has been reached, one or more standards continue
to be missed in subsequent quarers. Under Level 3, within the first month after the related
measurement results are initially posted, Qwest wil conduct a fuher, internal vice president-
level review of the Action Plan to identify additional steps that can be expected to have effect in
resolving the problem, as well as additional resources, if any, that can be applied to resolve the
matter. Qwest wil then offer to have a vice president meet or participate in a conference call
with representatives of affected/interested CLECs to review the Action Plan, additional steps
being taken, and the expected timeframes. Finally, this process calls for Qwest to establish a
status-sharng process with CLECs, including regular web postings, emails, or conference calls,
as best suited to the situation at hand. This status-sharng process wil continue throughout the
perod in which the performance issue remains at Level 3, as determined on a monthly basis
with successive results reports.
d) Outcome
As a result of pursuing the approach represented by QPAP-2, Qwest and other paries
wil be more focused on assuring that service quality meets standards and resolving real world
problems, rather than straining over the details of what even Liberty characterizes as "the
extreme complexity of the PAP payment mechanisms.,,82 This improved focus has been the
experence of Qwest and its customers who used commercial agreements, rather than the PAP,
to govern their business relationships. Qwest's history outside the PAP has shown that where
problems arse, Qwest labors to resolve them and engages in productive interactions with
CLECs to coordinate joint efforts to succeed. The QP AP-2 offers a suitable alternative to the
PAP which has met its purpose.
82 Report at 47.
Comments of Qwest Corporation - 33 -
III. CONCLUSION
The Idaho PAPin section 16.3 provides for a review by the Commission and Qwest to
determine whether its continuation is necessar once Qwest eliminates its separate affliate
under section 272. Qwest's obligations under section 272 have sunset and there is simply no
need or legal basis to continue the burdensome and punitive PAP. Designed originally to assure
that the market-opening provisions of section 271 would be sustained once Qwest entered the
interLATA market, the PAP's detailed measures have proven Qwest's performance over the last
seven years to be excellent. There is no evidence that Qwest has faltered in keeping its
wholesale markets open or in providing nondiscrminatory service to its CLEC customers.
The telecommunications markets are markedly different than they were seven years ago.
Wireline services providers, including Qwest and its CLEC customers, face their most serous
competition from cable and wireless competitors. Today Qwest's business interests urgently
drive the need to provide excellent service to its customers-including its CLEC customers-as
a matter of business survivaL.
The voluntary PAP offering has served its purpose and is no longer appropriate or
necessary. Simpler and less burdensome alternatives can provide assurance to CLECs while
preserving their legal remedies under the federal Act. Qwest respectfully requests that the
Commission give serous consideration to the QP AP-2, which is offered here as a means to
transition away from the PAP.
Respectfully submitted this 14th day of August, 2009.
Mary S. Hob (ISB. No. 2142)
999 Main. Suite 1103
Boise, ID 83702
Adam L. Sherr
Corporate Counsel, Qwest
1600 7th Avenue, Room 1506
Seattle, WA 98191
Attorneys for Qwest Corporation
Comments of Qwest Corporation - 34 -
Page I of2
THE FOLLOWING is THE IDAHO PUBLIC UTILITIES COMMISSION'S AGENDA FOR A DECISION
MEETING to be held on Monday, September 29, 2008 at 1:30pm. The agenda is published fort-eight (48)
hours in advance of each meeting. Meetings are held in the Commission's Hearg Room at the IPUC, 472 West
Washington Street, Boise, Idaho. The time and the agenda are subject to change. Please check with Jean Jewell,
Commissi6n Secretar, at 334-0338 if you have any questions.
APPROVAL OF MINUTES FROM PREVIOUS MEETINGS
1. Minutes of Decision Meeting on September 15, 2008. Minutes have been circulated to the commssioners for
review and are ready for consideration.
CONSENT AGENDA
2. Carolee Hall's September 25,2008 Decision Memorandumre: Application for Approval of Amendment to
the Interconnection Agreement Between Qwest and MCImetro Access Transmission Services LLC, Case No.
QWE-T-06-24.
J. Carolee Hall's September 25, 2008 Decision Memorandumre:Fremont Telcom dba Fairpoint
Communcations Seeking Commission Authority to Offer Seasonal Serice to Customers Who Temporarly
Leave the Service Area for an Extended Perod of Time, Advice No. ID-08-04.
1. Carolee Hall's September 26, 2008 Decision Memorandum re: Matrix Telecom, Inc., Requesting that Its
Certificate No. 468 be Revised to Reflect its New Company Name With Its Affiliates, Case No. MAT-T-07-0L.
~. Carolee Hall's September 22, 2008 Decision Memorandum re: Potlatch Telephone Company (Potlatch)
Revising Its Tariffto Implement the New Universal Serce Fund Rates per Commission Order No. 30635,
CaseNo. GNR-T-08-03.
Q. Gerr Galinato's September 26,2008 Decision Memorandum re: Eagle Water Tarff Advice No. 08-01, Rate
Schedule 1.
1. Scott Woodbury's September 24,2008 Decision Memorandum re: General Rate Case, Case No. PAC-E-08-
07 (Rocky Mountain Power).
MATTERS IN PROGRESS
.8. Carolee Hall's September 22,2008 Decision Memorandum re: Commission Approval for Staff to Join the
Regional Oversight Commttee (ROC) Multi-State Review Process for Qwests Performance Assurance Plan
(QP AP) and Its Performance Indicator Definitions (PIDS).
RULEMAKIG
2. Don Howell's September 26, 2008 Decision Memorandum re: Updating the Commission's Rules Regarding
the Transportation of Hazardous Materals by Rail, IDAPA 31-7103-0801 (Case No. RUL-R-08-01).
FULLY SUBMITTED MATTERS
10. Deliberation re: Mr. Corvino's Petition for Reconsideration from the Final Order in Mayfield Springs, the
Company's Answer to His Petition, and the Company's Petition to Alter or Amend the Commission's Final
Order, Case No. MSW-W-08-0L. (No Memo. Don Howell, Attorney.)
11. Neil Price's September 11,2008 Decision Memorandum re: Application ofBLC Management LLC dba
Angles Communcation Solutions for a Certificate of Public Convenience and Necessity, Case No. BLC-T-08-
01.
12. Neil Price's September 24,2008 Decision Memorandum re: Application ofPacifiCorp for a Certificate of
Attachment A
Comments of Qwest Corporation
fie://C:\Documents and Settings\mobson\Local Settings\Temporar Interni 8/14/09 Page lof2
Page 2 of2
Public Convenience and Necessity Authorizing Construction of the Populus-to-Terinal 345 kV Transmission
Line Project, Case No. PAC-E-08-03.
13. Deliberation re: 2008 Purchase Gas Cost Adjustment (PGA), Case No. AVU-G-08-03 (Avista). (No Memo.
Scott Woodbur, Attorney)
14. Deliberation re: Complaint -- McKay Construction, Order No. 30624 -- Petition for Reconsideration, Case
No. UWI-W-08-01 (United Water). (No Memo. Scott Woodbury, Attorney.)
15. Deliberation re: Request for Approval of 0.6 i Ot/kWh PCA Surcharge, Case No. A VU-E-08-05 (Avista).
(No Memo. Scott Woodbury, Attorney)
16. Deliberation re: Sale of CoventrPlace, M&M Mouìtain View Acres and Belmont Heights Non-
Contiguous Water Systems to City of Nampa, Case No. UWI-W-08-02 (United Water). (No Memo. Scott
Woodbury, Attorney.)
17. Deliberation re: In the Matter ofIntermountain Gas Company's 2008 PGA, Case No. INT-G-08-03. (No
Memo. Krs Sasser, Attorney.)
EXECUTIVE SESSION MATTERS
None.
D
Attachment A
Comments of Qwest Corporation
8/14/09 Page 2 of 2
fie:IIC:\Documents and Settings\mobson\Local Settings\Temporar Internet Files\OLKB17\2008... 8/5/2009
Qwest.
Spirit of Service™
Owest
1801 Callfomia Street, 52'" floor
Denv"r, Colorado 80202
Phon" 30$ 8964200
Fscsìmüe 303 244-0958
PCS 720-203-4200
R. Steven Davis
Senior Vice Pr".ld"nt
Public Policy
August 15,2008
Commissioner Philip B. Jones ·
Washington Utilties and Transportation Commission
Regional Oversight Com~ittee Chair
l300 S. Evergreen Park Dr., S.W.
P.O, Box 47250
Olympia, Washington 98504-7250
Re: Letter of July 31, 2008 regarding the Qwest Performance Assurance Plan (QPAP) and Request
for Response by August 15, 2008
Dear Commissioner Jones:
Thank you for your letter sent on behalf of the Regional Oversight Committee (ROC) Executive
Committee requesting Qwests participation in a QPAP Analysis Collaborative. Qwest respectfully
declines to participate in this process, as currently structured.
Qwest paricipated in a prior "collaborative effort" upon establishment of the. QPAPs. That effort was not
successful in reducing time, resources or in reaching conseiisus on critical issues. Because some
interested parties did not participate in that process and because neither commissions nor their staffs were
in any way bound by the findings and conclusions reached, those findings and conclusions were of little
01',110 value in the subsequent legal proceedings brought in all i 4 participating states.
We believe that the currently proposed collaborative process is destined to follow the same path. We
have major concerns about the process, the scope of the collaborative, and what can realistically be
achieved by use of a collaborative.
The purpose of the QPAP sunset reviewis to examine "whether the QPAP's continuation is necessary?"
This type of sunset review is separate and distinct from six-month or annual reviews and from audits that
are also set forth in the QPAP. This is not a review of meaurement or payment definitions or accuracy,
as is done in six-month reviews or audits. Rather, it is a consideration from a policy and legal perspective
as to what extent, if at all, Qwest is or should be required to continue to volunteer the QPAP as par of
interconnection agreements. Moreover, this issue must be examined in light of the FCC's detennination
that Qwesi is no longer required to manage its business through the use of a separate 272 affliate.
The QPAPs do not call for a multi-state collaborative review to determine their continued usefulness. To
the contrary, the QP APs in effect in eight Qwest states explicitly call for this review to be undertaken by
"the Commission and Qwest." Therefore, Qwest does not see benefits in its participation in a
collaborative review that is not likely to add value to the fundamental question identified above, and
which is not likely to reduce the time and cost of necessary state-by-state proceedings on this matter.
Attachment B
Comments of Qwest Corporation
8/14/09 Page i of 2
Commissioner Phìlp B. Jones
Washington Utilities and Transportation Commission
Regional Oversight Committee Chair
August 15,2008
Page 2
As noted above, past experience has shown that a collaborative review is neither cost effective nor
effcient. Specifically, toward the end of the 271 OSS Test, the parties (including commission staffs)
attempted to collaborate in developing the QPAP (in an effort called the Post-entr Enforcement Plan, or
"PEPP"). That process was unsuccessfuL. Later, a similar review was attempted for "long-term,PID
administration." After many months without meaningful results, Qwest opted for a biisiness-to.business
approach to PID administration. This approach yielded a successful stipulation, containing agreement on
numerous changes to PIDs and PAP payments, all within the existing foundational structure of the QPAP..
We respectfully encourage the ROC Executive Committee to consider the points outlined herein and
support completion of the required sunset reviews of the QPAP in each state. Thank you for your
consideration.
Sincerely,
Steve Davis
Senior Vice President
Public Policy
Cc: Regional Oversight Committee Executive Committee
Commissioner Ray Bauro, Oregon Public Utilities Commission
Chairman Ted Boyer, Utah Public Service Commission
Commissioner Anne Boyle, Nebraska Public Service Commission
Chairman Greg Jergeson, Montana Public Service Commission
Attachment B
Comments of Qwest Corporation
8/14/09 Page 2 of2
QWEST WHOLESALE PERFORMANCE ASSURANCE PLAN - IDAHO
("QPAP-2")
1.0 Introduction
1.1 As set forth in this Agreement, Qwest and CLEC voluntarily agree to the terms
of the following Qwest Performance Assurance Plan ("QPAP-2" or "Plan") as a
means for providing service performance in conformance with Qwests
interconnection agreement with the CLEC, by focusing on identifying, prio'ritizing, and
resolving service problems within Qwests control.
2.0' QPAP-2 Structure
2.1 This Plan consists of the following primary components:
2.1.1 Performance Measurements, including specified minimum standards, and
, products covered;
2.1.2 Triggers to faciltate identifying, prioritizing, and resolving confirmed service
problems;
2.1.3 A Response Process that uses the measurement results, minimum standards,
and triggers to identify and implement certain priority levels of resolution steps.
3.0 Penormance Measurements and Reporting
3.1 Performance measurements are as defined in Attachment 1 - "Performance
Measurement Definitions" and address the four service performance categories of
Ordering, Installation, Maintenance, and Repair.
3.2 Qwest wil post performance measurement results for the following
measurements, in accordance with Attachment 1 definitions, on a calendar-quarterly
basis, by the first business day of the second calendar month in the next calendar
quarter:
Performance Category Performance Measurement
.ordering -Firm Order Confirmation Timeliness
Installation -Installation Commitments Met-Installation Intervals
Maintenance -Trouble Rate
Repair -Troubles Restored within Estimated Intervals-Mean Time to Restore
Table 1
Attachment C
Comments of Qwest Corporation
8/14/09 Page 1 of 17
Qwest Wholesale Performance Assurance Plan-Idaho (QPAP-2) - 14 August 2009
- 1-
3.2.1 Combined-CLEC, statewide performance measurement results wil be posted
on a public Qwest website.
3.2.2 Individual, CLEC-specific, statewide performance measurement results wil be
posted on a password-protected, Qwest website through which each CLEC wil have
access to its own results.
3.3 Minimum Standards - Attachment 1 defines minimum standards for each
measurement by product.
3.3.1 Where the defined minimum standards are benchmarks (Le., specific
percentage levels or intervals), performance results wil be evaluated for meeting or
missing the standards on a "stare and compare" basis.
3.3.1.1 Qwest shall be in conformance with benchmark measurements when
the monthly performance result equals or exceeds the benchmark, if a higher value
means better performance; or when the monthly performance result equals or is less
than the benchmark, if a lower value means better performance.
3.3.1.2 For example, if the benchmark is for a particular performance
measurement is 85%, where the nature of the measurement is such that a higher
percentage result is better, Qwest performance results must be at least 85% to meet
the benchmark.
3.3.1.3 Percentage benchmarks will be adjusted to round the allowable number
of misses up or down to the closest integer percentage, except when a benchmark
standard and low CLEC volumes are such that a 100% performance result would be
required to meet the standard and has not been attained, in which case, the
measurement results affected by the single ticket or order that would otherwise cause
such a miss will not be considered to have missed the benchmark.
3.3.2 Where defined minimum standards are "parity," performance results wil be
evaluated for meeting or missing the standards based on the following:
3.3.2.1 Qwest wil use statistical scoring, based on standard z-test statistical
methodology or the equivalent, to determine whether any difference between
combined-CLEC and Qwest statewide performance results is statistically significant -
that is, not attributable to random variation. Given the combined-CLEC statewide
volume for a given measurement, where perfect performance would be required to
meet the parity standard, the standard shall be deemed to have been met if there is
only one missed order or ticket, as applicable.
3.3.2.2 Where both the combined-CLEC and Retail Analogue statewide
volumes are greater than or equal to 50, statistical parity shall be considered to exist
when, based on a standard, one-tailed z-test, the comparison of the combined-CLEC
performance result and specified Qwestretail analogue result yields a Z-score that is
no greater than the critical-z value from the following table:
Owest Wholesale Performance Assurance Plan-Idaho (QPAP-2) -14 August 2009
- 2-
CLECvolume
(Sample size)Critical Z-Value
50-150 1.645
151-300 2.0
301-600 2.7
601-3000 3.7
3001 and above 4.3
TABLE 2' CRITICAL Z-VALUE
3.3.2.2.1 If a z-test can not be mathematically calculated, due to a lack of
variance or other factors, the standard shall be deemed to have been met for the
affected performance measurement result.
3.3.2.3 Where the combined-CLEC or Retail Analogue statewide volumes are
less than 50, statistical parity shall be considered to exist when, based on a
permutation test, the comparison of combined-CLEC statewide result and the
specified Qwest retail analogue statewide result yields a Z-score that is no greater
than 1.645.
3.3.2.3.1 Permutation test analysis will be applied to calculate the Z-Score using
the following method or its equivalent:
Calculate the Z-Score for the actual arrangement of the data
Pool and mix the CLEC and Qwest data sets
Perform the following 1000 times:
Randomly subdivide the pooled data sets into two pools, one the same
size as the original CLEC data set (nCLEc) and one reflecting the
remaining data points, and one reflecting the remaining data points,
(which is equal to the size of the original Qwest data set or nawEsT).
Compute and store the Z-test score (Zs) for this sample.
Count the number of times the Zs for a permutation of the data is greater than
the actual Z-Score
Compute the fraction of permutations for which the statistic for the rearranged
data is greater than the statistic for the actual samples
3.3.2.3.2 If the fraction computed via the foregoing methodology is greater than
0.05 (which is the significance level of the test corresponding to a Z-Score of 1.645),
the hypothesis of no difference is not rejected, the test is passed, and the compared
results are considered to be in statistical parity.
4.0 Triggers
4.1 Triggers constitute pre-defined thresholds to facilitate identifying, confirming,
prioritizing, and resolving service problems.
4.2 Triggers apply the minimum standards defined in Attachment 1 to Combined-
CLEC, statewide performance results to identify the Response Process levels, by
product, that wil apply to Qwests and CLECs' efforts to work together to resolve
confirmed service problems.
Owest Wholesale Performance Assurance Plan-Idaho (QPAP-2) - 14 August 2009
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4.3 Triggers and the Response Process Levels (defined in Section 5.0 below)
which they activate are as follows:
Category Response
Measurements Tri ers Levels
Orderina
Misses the standard for 3 consecutive months Level 1
Firm Order Misses the standard for more than 5Confirmationconsecutive months, OR misses the standardTimelinessby more than 10 percentage points for more Level 2
than 3 months
Installation
Either measurement individually misses the
Level 1 Installation standard for 3 consecutive months
Commitments Met Either measurement individually misses theandstandard for more than 5 consecutive months,
Level 2 Installation Interval OR both measurements each miss the
standard for 3 consecutive months
Maintenance
Misses the standard for 3 consecutive months Level 1
Misses the standard for more than 5
Trouble Rate (TR)consecutive months, OR the TR
Level 2 measurement result is greater than 7% for 3
consecutive months
ReDair
Troubles Restored Either measurement individually misses the
Level 1 within Estimated standard for 3 consecutive months
Interval Either measurement individually misses the
and standard for more than 5 consecutive months,
Level 2
Mean Time to OR Both measurements each miss the
Restore standard for 3 consecutive months
'"
All Above Any of the above categories that continue in
Level 3 CateaorieslMetrics Level 1 or 2 beyond 7 consecutive months.
Table 3
5.0 Response Process
5.1 Day-to-Day Response Level - Owest agrees to monitor service quality and to
act in good faith to maintain service quality levels that satisfy or better the standards
defined in Attachment 1 to the extent reasonably feasible and within its control.
5.2 CLEC agrees to work cooperatively with Owest in efforts to isolate causes
contributing to service quality levels that do not satisfy standards defined in
, Attachment 1, including providing requested data or other information, to the extent
such data or information is reasonably available and relevant to such analysis.
Owest Wholesale Performance Assurance Plan-Idaho (OPAP-2) - 14 August 2009
- 4-
5.3 Escalated Response Process Levels - Service quality response levels and
steps wil be activated as set forth in Table 2, section 4.3, above. Owest agrees to
implement escalated Response Levels thus triggered in the manner defined below:
5.3.1 Response Level 1 - Applies a level of attention and targeted resolution that is
higher than day-to-day levels. In response to Level 1 triggers, within the first month
after the related results are first posted:
5.3.1.1 Owest wil evaluate the data to confirm existence of a valid performance
issue (in contrast to issues associated with exogenous factors, low volumes, or
metric calculation problems).
5.3.1.1.1 Where force majeure is factor, or where other exogenous, non-Owest
factors account for the performance result missing the standard, Owest will document
the facts, along with explanatory analyses, and make these available to CLEC upon
request or via a password-protected website. Such situations shall not be considered
a "miss" in any month in which, absent such factor(s), the performance result would
have met the standard.
5.3.1.1.2 Where the issue involves a measurement calculation problem and not a
service performance problem, Owest wil undertake steps to resolve the matter in its
systems, to the extent possible and feasible. Unless or until such resolution is
possible or feasible, Owest wil document the instances of measurement results
affected by the issue as they arise. Such situations shall not be considered a '''miss''
in any month in which, absence this factor, the performance result would have met
the standard.
5.3.1.2 If a valid performance issue is confirmed, the performance result is
considered to be qualified for Level 1 response, and:
5.3.1.2.1 Owest wil determine, to the extent possible, the contributing factors
and alternative solutions, as applicable.
5.3.1.2.2 Where corrective action is called for, Owest wil develop, document,
and implement an Action Plan, as soon as practicable, in a good-faith effort to
mitigate or resolve the issue
5.3.2 Response Level 2 - Initiates re-evaluation of the prior Action Plan(s)
(established under Level 1 , as applicable) and identifies improvements and
necessary escalations to enhance the probability of success in resolving the issue.
In response to Level 2 triggers, within the first month after the related results are first
posted:
5.3.2.1 Owest wil evaluate the data to confirm whether a valid performance
issue is continuing (per 5.3.1.1, 5.3.1.1.1, and 5.3.1.1.2 above). If so, the
performance result is considered to be qualified for Level 2 response, and:
5.3.2.1.1 Owest will evaluate shortalls, if any, in the Action Plan and implement
necessary changes.
5.3.2.1.2 Owest wil escalate the matter internally to vice president (VP) level for
additional attention, priority, and support.
5.3.2.1.3 Owest wil inform affected CLECs (via password-protected web
postings or, alternatively, via email to representatives who have been pre-designated
Qwest Wholesale Performance Assurance Plan-Idaho (QPAP-2) -14 August 2009
- 5-
by participating CLEes) about the Action Plan, its elements, and timeframes, along
with expected outcomes, and wil take into consideration applicable observations and
comments received from CLECs (as communicated through assigned Qwest account
teams).
5.3.3 Response Level 3 - Applies the highest level of attention and expedited
response, short of emergency/disaster response levels. In response to Level 3
triggers, within the first month after the related results are first posted:
5.3.3.1 Qwest wil evaluate the data to confirm whether a valid performance
issue is continuing (per 5.3.1.1, 5.3.1.1.1, and 5.3.1.1.2 above). If so, the
performance result is considered to be qualified for Level 3 response, and:
5.3.3.1.1 Qwest wil conduct an internal Vice President-level review of the
augmented Action Plan and identify additional steps that can be expected to be
effective or resources than can be applied to resolve the issue.
5.3.3.1.2 Qwest wil offer to have a Qwest Vice President (one who is responsible
for Wholesale Account Teams serving some or all of the affected CLECs) hold a
conference call with representatives of affectedlinterested CLECs to review the
Action Plan, additional steps being taken, and the expected timeframes.
5.3.3.1.3 Qwest wil establish a status-sharing process, including regular,
frequent (up to bi-weekly) web postings (password-protected), emails, or conference
calls, reporting the progress being made to resolve the problem. This status-sharing
process wil continue throughout the period the performance issue remains at Level
3, as determined on a monthly basis with successive. results reports.
6.0 Modified Dispute Resolution for Service Quality Matters
6.1 Qwest agrees to implement the foregoing service quality reporting and
response process and to act in good faith to maintain service quality at or better than
the standards defined in Attachment 1 or to resolve exceptions in an expedient
manner.
6.2 CLEC agrees to cooperate in good faith with Qwests efforts in relation to the
Plan's service quality response provisions and to allow the Plan process to work
before invoking other provisions of the Agreement governing dispute resolution
involving the same products and performance issues as dealt with under QPAP-2.
6.3 For the purpose of resolving disputes over the meaning of the provisions of
QPAP-2 and how they should be applied, the dispute resolution provisions of Qwests
Template Interconnection Agreement (TIA), Section 5.18, shall apply, whether the
CLEC uses the TIA in its entirety or elects to make QPAP-2 part of its interconnection
agreements (Le., unique dispute resolution provisions, if any, of individual
interconnection agreements do not apply to this Plan, unless both CLEC and Qwest
mutually agree at the outset of a given dispute related to this Plan).
Qwest Wholesale Performance Assurance Plan-Idaho (QPAP-2) - 14 August 2009
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7.0 Limitations
7.1 Qwests agreement to implement this Plan - including without limitation its
performance measurement reporting, minimum standard, and response level
provisions - shall not be considered as an admission against interest or an admission
of liabilty in any legal, regulatory, or other proceeding relating in whole or in part to
the same performance.
7.2 GLEG may not use: a) the existence of this Plan; or b) Qwests data shared in
good faith under provisions of this Plan as evidence that Qwest has discriminated in
the provision of any facilities or services under Sections 251 or 252, or has violated
any state or federal law or regulation. Qwests conduct underlying its performance
measures, however, is not rendered inadmissible solely by application of these
terms.
7.3 By accepting this performance remedy plan, GLEG agrees that Qwests
performance with respect to this Plan may not be used as an admission of liabilty or
culpability for violation(s) of any state or federal law or regulation.
7.4 This Plan contains a set of performance measurements, statistical
methodologies, and response mechanisms that are designed to function together,
and only together, as an integrated whole, applying the same Plan provisions for all
GLEGs that adopt QPAP-2 in the state.
7.5 To elect QPAP-2, CLEG must adopt the Plan in its entirety, in its
interconnection agreement with Qwest, recognizing QPAP-2 as constituting the sole
agreement between Qwest and GLEG governing service performance assurance for
the products and service dimensions addressed by the Plan.
8.0 Voluntary Service Quality Plan
This Plan represents Qwests voluntary offer to provide service performance
assurance. Nothing in QPAP-2 or in any conclusion of non-conformance of Qwests
service performance with the standards defined in the Plan shall be construed to be,
of itself, non-conformance with the Act.
Owest Wholesale Performance Assurance Plan-Idaho (QPAP-2) - 14 August 2009
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Attachment 1: Penormance Measurement Definitions
ORDERING PROCESS
FOC - Firm Order Confirmation (FOC) Timeliness
Purpose:
Monitors the timeliness with which Qwest returns electronically-received, manually-processed Firm Order
Confirmations (FOCs) to CLECs in response to LSRs received from those CLECs, focusing on the degree to
which FOCs are provided within specified intervals.
Description:
Measures the percentage of electronically-received, manually processed Firm Order Confirmations (FOCs)
that are provided to CLECs within the intervals specified under "Targets" below for FOC notifications.
· Includes all LSRs that are submitted through IMA-GUI and IMA-XML interfaces that receive a manually-
processed FOC during the reporting period, subject to exclusions specified below. (Acknowledgments
sent separately from an FOC are not included.)
· Also includes all LSRs for Unbundled Loops requiring facility check that are electronically received and
for which the FOC is electronically processed.
· LSRs are evaluated according to the FOC interval categories shown in the "Targets" section below,
based on the number of lines/services requested on the LSR or, where multiple LSRs from the same
CLEC are related, based on the combined number of lines/services requested on the related LSRs.Reporting Period: One month Unit of Measure: Percent
Reporting Levels: Combined CLECs, Individual
CLECs
Disaggregation Reporting: Statewide (per multi-
state system serving the state)
Formula:
nCount of LSRs for which the original FOC's "(FOC Notification Date & Time) - (Application Date & Time)" is
within the intervals specified for the service category involved) -; (Total Number of original electronically-
received, manually-processed FOC Notifications transmitted for the service category in the reporting periodn
x 100
Exclusions:
· LSRs involving individual case basis (ICB) handling based on quantities of lines, as specified in the
"Targets" and "Notes" sections below, and service/request types that are deemed to be projects.
· Hours on weekends and holidays.
· LSRs requesting service in areas involving high cost or requiring new facility construction, or where
customer buildings or infrastructure are not ready, thus preventing or delaying firm order confirmation -
to the extent Qwest can identify and record such fact(s) in its measurement system in time to include in
the timely reporting of this measurement. NOTE 1
· LSRs with CLEC-requested FOC arrangements different from standard FOC arrangements.
· Records with invalid product codes.
· Records missing data essential to the calculation of the measurement per the measure definition.
· Duplicate LSR numbers.
· Invalid startstop dates/times.
Qwest Wholesale Performance Assurance Plan-Idaho (QPAP-2) - 14 August 2009
- 8-
Foe Timeliness (continued)
Product Reporting:Minimum Standard (higher is better)
Combined Unbundled
Loop-Analog, -2-Wire 90% within Target FOC intervals (specified below)
Non-Loaded, -OS1-
capable, and Enhanced Target FOe Intervals
Extended Loop-OS1
(EEL-OS1)Products NOTE 2 Quantity FOe Interval
Unbundled Loops 1-24 loops 72 hours
EEL.DS1 1-24 circuits 72 hours
Availabilty:Notes:
TBO 1.Where Qwest cannot "identify and record such fact(s) in time to include in
the timely reporting of this measurement," Qwest may include this among
"non-Qwest" factors considered when confirming whether this measurement
has met or missed the standard.
2.LSRs with quantities above the highest number specified for each product
type cateaorv are considered ICB.
Qwest Wholesale Performance Assurance Plan-Idaho (QPAP-2) -14 August 2009
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Attachment 1 - Performance MeasClrement Definitions (continued)
Qwest Wholesale Performance Assurance Plan - Idaho (CPAP-2)
INSTAllATION
ICOM - Installation Commitments Met
Purpose:
Evaluates the extent to which Qwest installs services for Customers by the scheduled due date.
Description:
Measures the percentage of orders for which the installation is completed on scheduled due date..All inward orders (Change, New, and Transfer order types) assigned a due date by Qwest and
completed/closed during the reporting period are measured, subject to exclusions specified below.
Change order types included in this measurement consist of all C orders representing inward activity
(with "I" and "T" action-coded line USOCs). Also included are orders with customer-requested due dates
longer than the standard intervaL..Completion date on or before the Applicable Due Date (ADD) recorded by Qwest is counted as a met due
date. The ADD is the Original Due Date (ODD) or, if changed or delayed by the customer, the most
recently revised due date, subject to the following: If Qwest changes a due date for Qwest reasons, the
ADD is the customer-initiated due date, if any, that is (a) subsequent to the ODD and (b) prior to a Qwest-
initiated, changed due date, if any.
Reporting Period: One month, reported on a Unit of Measure: Percentquarterly basis. .
Reporting Levels: Combined CLECs, Individual Disaggregation Reporting: Statewide
CLECs
Formula:
((Total Orders completed in the reporting period on or before the ADD) + (Total Orders Completed in the
Reporting Period)) x 100
Exclusions:.Disconnect, From (another form of disconnect) and Record order types..Due dates missed for standard categories of customer and non-Qwest reasons, that Qwest is capable of
recording in its ordering/provisioning tracking systems as such, in time for inclusion in measured results..Records involving official company services..Records with invalid due dates or application dates..Records with invalid completion dates..Records with invalid product codes..Records missing data essential to the calculation of the measurement per the measure definition.
Product Reporting Minimum Standard (higher is better)
1. Unbundled Loop-Analog
2. Unbundled Loop-2-Wire Non-Loaded 80 percent
3. Unbundled Loop-DS1-capable
4. EEL-DS1
Availabilty:Notes:
TBD
Qwest Wholesale Performance Assurance Plan-Idaho (QPAP-2) - 14 August 2009
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Attachment 1 - Performance Measurement Definitions (continued)
QwestWholesale Performance Assurance Plan -Idaho (CPAP-2)
INST - Order Installation Interval
Purpose:
Evaluates the timeliness of Qwests installation of services for CLECs, focusing on the average number of
business davs to install service, from aoolication dates to comoletion dates.
Description:
Measures the average interval (in business days) between application dates and the completion dates for
service orders accepted and implemented by Qwest..Includes all inward orders (Change, New, and Transfer order types) assigned a due date by Qwest and
completed/closed during the reporting period, subject to exclusions specified below. Change order types
for additional lines consist of all C orders representing inward activity..Intervals for each measured event are counted in whole days: Le., the application date is day zero (0); the
day following the application date is day one (1), and so forth..The Applicable Due Date (ADD) is the Original Due Date (ODD) or, if changed or delayed by the CLEC,
the most recently revised due date, subject to the following: If Qwest changes a due date for Qwest
reasons, the ADD is the CLEC-initiated due date, if any, that is (a) subsequent to the ODD and (b) prior to
a Qwest-initiated, changed due date, if any. NOTE 1.Time intervals associated with CLEC-initiated due date changes or delays occurring after the ADD, as
applied in the formula below, are calculated by subtracting the latest Qwest-initiated due date, if any,
followina the ADD, from the subseauent CLEC-initiated due date, if anv.NOTE 1
Reporting Period: One month, reported on a Unit of Measure: Business Days
quarterly basis.
Reporting Levels: Combined CLECs, Individual Disaggregation Reporting: Statewide
CLECs
Formula:
~((Order Completion Date) - (Order Application Date) - (Time interval between ODD & ADD) - (Time intervals
from CLEC"'initiated due date changes or delays after ADD)) + Total Orders Completed in reporting period
Exclusions:.Orders with CLEC-requested due dates greater than the current standard intervaL..Disconnect, From (another form of disconnect), and Record order types..Records involving official company services..Records with invalid due dates or application dates..Records with invalid completion dates..Records with invalid product codes..Records missing data essential to the calculation of the measurement per the measure definition..OrderS involving individual case basis (ICB) handling based on quantities of lines, circuits or loops, and
orders deemed to be oroiects.
Product Reporting:Minimum Standards (lower is better)
1. Unbundled Loop-AnaloQ 6 business days
2. Unbundled Looo-2-Wire Non-Loaded Parity with RetaiIISDN-BRI (desianed)
3. Unbundled Loop-DS1-capable Parity with Retail Private Line DS1
4. EEL-DS1 Parity with Retail Private Line DS1
Availabilty:Notes:
TBD 1.According to this definition, the ADD can change, per successive CLEC-initiated due date changes
or delays, up to the point when a Qwest-initiated due date change occurs. At that point, the ADD
becomes fixed (Le., with no further changes) as the date on which it was set prior to the first Qwest-
initiated due date change, if any. Following the first Qwest-initiated due date change, further CLEC- .
initiated due date changes or delays are measured as time intervals subtracted, as indicated in the
formula. These delay time intervals are calculated as stated in the description. (Though infrequent,
in cases where multiple Qwest-initiated due date changes occur, the stated method for calculating
delay intervals is applied to each pair of Qwest-initiated due date changes and subsequent CLEC-
initiated due date changes or delays. The intervals thus calculated from each pairing of Qwest and
CLEC-initiated due dates are summed and then subtracted as indicated in the formula.) The result
of this approach is that Qwest-initiated impacts on intervals are counted in the reported interval, and
CLEC-initiated impacts on intervals are not counted in the reoorted intervaL.
Qwest Wholesale Performance Assurance Plan-Idaho (QPAP-2) - 14 August 2009
- 11-
Attachment 1 - Performance Measurement Definitions (continued)
Owest Wholesale Performance Assurance Plan - Idaho (CPAP-2)
MAINTENANCE
TR - Trouble Rate
Purpose:
Evaluates the "health" of the Owest network serving specified products, indicating the overall rate of trouble
reoorts as a oercentaae of the total installed base of each product.
Description:
Measures trouble reports by prøduct and compares them to the number of lines in service..Includes all trouble reports closed during the reporting period, subject to exclusions specified below..Includes applicable trouble reports that are out of service and those that are only service-affecting, which
can be attributed to Owest causes or failures of Owests network.
Reporting Period: One month, reported on a Unit of Measure: Percent .
quarterly basis.
Reporting Levels:Combined CLECs, Individual Disaggregation Reporting: Statewide
CLECs
Formula:
((Total number of trouble reports closed in the reporting period involving the specified service grouping) +
(Total number of the specified services that are in service in the reporting period)) x 100
Exclusions:.Trouble reports coded as No Trouble Found (NTF), Test OK (TOK), Carrier Action (IEC) and Customer
Provided Equipment (CPE) or other non-Owest causes, to the extent Owest is able to identify and code
the conditions in its repair and maintenance systems..Trouble reports received within 30 calendar days of the date the involved product was installed..Repeat trouble reports (Le., trouble reports received within 30 calendar days of the date a preceding
trouble report for the same product was close)..Subsequent trouble reports.of any trouble before the original trouble report is closed..Information tickets generated for internal Owest system/network monitoring purposes..Trouble reports received on the day of installation before the installation work is reported by the
technician/installer as complete..Records involving official company services..Records with invalid trouble receipt dates..Records with invalid restored or closed dates..Records with invalid product codes..Records missina data essential to the calculation of the measurement per the measure definition.
Product Reporting:Minimum Standards (lower is better)
1. Unbundled Loop-Analoa
2..Unbundled Looo-2-Wire Non-Loaded 5%
3. Unbundled Loop-DS1-capable
4. EEL-DS1 .
Availabilty:Notes:
TBD
Qwest Wholesale Performance Assurance Plan-Idaho (QPAP-2) - 14 August 2009
- 12-
Attachment 1 - Performance Measurement Definitions (continued)
Qwest Wholesale Performance Assurance Plan - Idaho (CPAP-2)
REPAIR
TREI - Troubles Restored within Estimated Intervals
Purpose:
Evaluates timeliness of repair for specified services, focusing on the percentage of specified trouble report
tvoes that were restored within specified interval estimates.
Description:
Measures the percentage of specific types of trouble reports (Le., "out of service" or "all")that are received
during normal business hours and restored within product-specific estimated time intervals following Qwests
receipt of trouble reports from CLECs..Includes all trouble reports, of the specified type, which are closed in the reporting period, subject to
exclusions specified below..Time measured is from the date and time of receipt to the date and time trouble is restored, as recorded
in Qwests maintenance and repair tracking systems..Where applicable, the "out-of-service" ("OOS") trouble type refers to service troubles that prevent the
product from being used in any way (as distinguished from a product that is only degraded or affected by
a given trouble)..Normal business hours are defined as 8:00 a.m. to 5:00 p.m. on business days.
Reporting Period: One month, reported on a Unit of Measure: Percent
quarterly basis..
Reporting Levels:Disaggregation Reporting: Statewide
Combined CLECs, Individual CLEC A.Troubles with technician dispatched
B.Troubles not disoatched
Formula:
((Number of Trouble Reports closed in the reporting period that are restored within specified estimated time
interval after Qwest receipt) :+(Total Number of Trouble Reports closed in the reporting period)) x 100
Exclusions:.Trouble reports coded as No Trouble Found (NTF), Test OK (TOK), Carrier Action (IEC) and Customer
Provided Equipment (CPE) or other non-Qwest causes, to the extent Qwest is able to identify and code
the conditions in its repair and maintenance systems..Subsequent trouble reports of any trouble before the original trouble report is closed..Information tickets generated for internal Qwest system/network monitoring purposes..Time delays due to "no access," to the extent Qwest is able to capture and record the delays in Qwests
maintenance and repair tracking systems..Trouble reports received by Qwest, on the day of installation, before the installation work is reported in
Qwests systems by the technician as being restored..Records involving official company services..Records with invalid trouble receipt dates..Records with invalid restored or closed dates..Records with invalid product codes..Records missing data essential to the calculation of the measurement per the measure definition.
Product Reporting Trouble Types Estimated
Measured Intervals Minimum Standards
1.Unbundled Loop-AnaloÇJ OOS 24 hours
2.Unbundled Looo-2-Wire Non-Loaded OOS 24 hours
3A. Unbundled Loop-DS1-capable All - Dispatched 8 hours 80%3B. Unbundled Looo-DS1-capable All - Non-Disoatched 4 hours
4A. EEL-DS1 All - Dispatched 8 hours
4B. EEL-DS1 All - Non-Disoatched 4 hours
Availabilty:
I Notes:TBD
Qwest Wholesale Performance Assurance Plan-Idaho (QPAP-2) -14 August 2009
- 13-
Attachment 1 - Performance Measurement Definitions (continued)
Qwest Wholesale Performance Assurance Plan -Idaho (CPAP-2)
MTTR - Mean Time to Restore
Purpose:
Evaluates timeliness of repair, focusina on the averaQe interval for restorinQ reported troubles.
Description:
Measures the average time taken to restore trouble reports, as recorded in Qwests maintenance and repair
tracking systems..Includes all trouble reports received during business hours and closed during the reporting period,
subject to exclusions specified below..Includes customer-direct reports, customer-relayed reports, and test-assist reports that result in a trouble
report..Time measured is from date and time of receiot to date and time trouble is restored.
Reporting Period: One month, reported on a Unit of Measure: Hours and Minutes
quarterly basis.
Reporting Levels: Combined CLECs, Individual Disaggregation Reporting: Statewide
CLECs A.Troubles involving dispatch
B.Troubles not involving dispatch
Formula:
L((Date & Time Trouble Report Restored) - (Date & Time Trouble Report Received)) +- (Total number of
Trouble Reports closed in the reporting period)
Exclusions:.Trouble reports coded for Carrier Action (IEC), Customer Provided Equipment (CPE) or other non-Qwest
causes, to the extent Qwest is able to identify and code the conditions in its repair and maintenance
systems..Subsequent trouble reports of any trouble before the original trouble report is closed..Information tickets generated for internal Qwest system/network monitoring purposes..Time delays due to "no access," to the extent Qwest is able to capture and record the delays in Qwests
maintenance and repair tracking systems..Trouble reports received on the day of installation before the instaflation work is reported in Qwests
systems as being restored..Records involving official company services..Records with invalid trouble receipt dates..Records with invalid restored or closed dates..Records with invalid product codes..Records missinQ data essential to the calculation of the measurement per the measure definition.
Product Reporting Trouble Types
Measured in MTEI Minimum Standards
1.Unbundled Loop-AnaloQ All .Parity with Retail Res and Bus POTS
2.Unbundled Looo-2-Wire Non-Loaded All Parity with Retail ISDN BRI (desianed)
3A. Unbundled Loop-DS 1-capable All - Dispatched Parity with Retail DS1 Private Line
3B. Unbundled Looo-DS1-capable All - Non-Disoatched Paritv with Retail DS1 Private Line
4A. EEL-DS1 All - Dispatched Parity with Retail DS1 Private Line
4B. EEL-DS1 All - Non-Disoatched Parity with Retail DS1 Private Line
Availabílty:Notes:
TBD
Qwest Wholesale Performance Assurance Plan-Idaho (QPAP-2) - 14 August 2009
- 14-
Defitions of Term (contiued) Attchment 1 - Performance Measurement Defitions
Qwest Wholesale Performance Assurance Plan - ldao(CP AP-2)
DEFINITIONS OF TERMS
Application Date (and Time) - The date (and time) on which Qwest receives from the CLEC a
complete and accurate local service request (LSR) or access service request (ASR) or retail order,subject to the following: .
· For the. following types of requests/orders, the application date (and time) is the start of the next
business day:
(1) LSRs and ASRs received after 3:00PM MT for Designed Services and Local Number
Portability (except non-:designed, flow-through LNP).
(2) Retail orders received after 3:00 PM local time for Designed Services.
(3) LSRs rèceived after 7:00PM MT for POTS Resale (Residence and Business), Non-Design
Resale Centrex, non-designed UNE-P, Unbundled Loops, and non-designed, flow-throughLNP. .
(4) Retail orders for comparable non-designed services cannot be received after closing time, so
the cutoff time is essentially the business office closing time.
· For all types of orders that are received from Friday at 7:00 PM MT through Sunday, or on
holidays, and do not flow through, the application date (and time) is the next, non-weekend
business day.
Business Day - Workdays that Qwest is normally open for business. Business Days are Monday
through Friday, excluding weekends and Qwest published Holidays including New Year's Day,
Memorial Day, July 4th, Labor Day, Thanksgiving and Christmas.
Closed Trouble Report - A trouble report that has been closed out from a maintenance center
perspective, meaning the ticket is closed in the trouble reporting system following repair of the
trouble.
Completion - The time in the order process when the service has been provisioned and service is
available.
Coordinated Customer Conversion -- Orders that have a due date negotiated between the ILEC,
the CLEC, and the customer so that work activities can be performed on a coordinated basis under
the direction of the receiving carrier.
Customer-Requested Due Date - A specific due date requested by the customer which is either
shorter or longer than the standard interval or the interval offered by the ILEC.
DS-1 - Digital Service Level 1. Service provided at a digital signal speed of 1.544 Mbps.
Due Date - The date provided on the Firm Order Confirmation (FOC) the ILEC sends the CLEC
identifying the planned completion date for the order.
Firm Order Confirmation (FOC) - Notice the ILEC sends to the CLEC to notify the CLEC that it has
received the CLECs service request, created a service order, and assigned it a due date.
Installation - The activity performed to activate a service.
Inward Activity - Refers to all orders for new or additional lines/circuits. For change order types,
additional lines/circuits consist of all C orders with "I" and "T" action coded line/circuit USOCs that
represent new or additional lines/circuits, including conversions from retail to CLEC and CLEC to
CLEC.
Lack of Facilties - A shortage of cable facilities identified after a due date has been committed to a
customer, including the CLEC. The facilities shortage may be identified during the inventory
assignment process or during the service installation process, and typically triggers a jeopardy.
Local Service Request (LSR) - Transaction sent from the CLEC to the ILEC to order services or to
request a change(s) be made to existing services.
Projects - Service requests that exceed the line size and/or level of complexity which would allow for
the use of standard ordering and provisioning processes. Generally, due dates for projects are
negotiated, coordination of service installations/changes is required and automated provisioning may
not be practicaL.
Qwest Wholesale Performance Assurance Plan-Idaho (QPAP-2) -14 August 2009
- 15-
Definitions of Term (continued) Attchment 1- Pedormance Measurement Defitions
Qwest Wholesale Pedonnance Assurance Plan - Idao (CP AP-2)
Ready For Service (RFS) - The status achieved in the installation of a collocation arrangement
whèn all "operational" work has been completed. Operational work consists of the following as
applicable to the particular type of collocation:
· Cage enclosure complete;
· DC power is active (including fuses available, BDFB (Battery Distribution Fuse Board) in place,
and cables between the CLEC and power terminated);
· Primary AC outlet in place;
· Cable racking and circuit terminations are complete (e.g. fiber jumpers placed between the
Outside Plant Fiber Distribution Panel and the Central Office Fiber Distribution Panel serving theCLEC). and .
· The following items complete, subject to the CLEC having made required payments to Owest
(e.g., final payment): (If the required CLEC payments have not been made, the following items
are not required for RFS):
Key turnover made available to CLEC.
- APOT/CFA complete, as defined/required in the CLEC's interconnection agreement
and
Basic telephone service and other services and facilities complete, if ordered by CLEC in
time to be provided on the scheduled RFS date (per Owests published standard installation
intervals for such telephone service).
Ready for Se.rvice Date (RFS date) - The due date assigned to a collocation order (typically
determined by regulatory rulings, contract terms, or negotiations with CLEC) to indicate when
collocation installation is scheduled to be ready for service, as defined above.
Restored Trouble Report - A trouble report for which the trouble has been restored, meaning the
customer is "back in service."
Service Order - The work order created and distributed in ILECs systems and to ILEC work groups
in response to a complete, valid local service request.
Service Order Type - The designation used to identify the major types of provisioning activities
associated with a local service request.
Standard Interval - The interval that the ILEC publishes as a guideline for establishing due dates for
provisioning a service request. Typically, due dates will not be assigned with intervals shorter than
the standard. These intervals are specified by service type çind type of service modification
requested. ILECs publish these standard intervals in documents used by their own service
representatives as well as ordering instructions provided toCLECs in the Owest Standard Interval
Guidelines.
Subsequent Reports - A trouble report that is taken in relation to a previously-reported trouble prior
to the date and time the initial report has a status of "closed."
Time to Restore - The time interval from the receipt, by the ILEC, of a trouble report on a
customer's service to the time service is restored or fully restored to the customer.
Unbundled Loop - The Unbundled Loop is a transmission path between a Owest Central Office
Distribution Frame, or equivalent, and the Loop Demarcation Point at an end user premises. Loop
Demarcation Point is defined as the point where Owest owned or controlled facilities cease, and
CLEC, end user, owner or landlord ownershipof facilities begins.
Owest Wholesale Performance Assurance Plan-Idaho (OPAP-2) - 14 August 2009
- 16-
Pedormance Measurement Definitions (continued)
Qwest Wholesale Pedormance Assurance Plan - Idaho (CP AP-2)
GLOSSARY OF ACRONYMS
ACRONYM DESCRIPTION .
.ASR Access Service Request (processed via Exact system)
BRI Basic Rate Interface (of ISDN service)
CKT Circuit
CLEC Competitive Local Exchançie Carrier
CO Central Offiqe
CPE Customer Premises Equipment
CSR Customer Service Record
DS1 Diçiital Service 1
EEL Enhanced Extended Loop
FOC Firm Order Confirmation
IEC Interexchange Carrier
ILEC Incumbent Local Exchange Carrier (e.g., Owest)
IMA Interconnect Mediated Access
10F Interoffice Facilties (refers to trunk facilities located between
Owest central offices)
ISDN Integrated Services Digital Network
LSR Local Service Request
N, T,C Service Order Types - - N (new), T (to or transfer), C
(chançie)
OOS Out of service (type of trouble condition)
POTS "Plain Old Telephone Service"
RFS Ready for Service (refers to collocatión installations)
TN .Telephone Number
UNE .Unbundled Network Element
WFA Work Force Administration system
Owest Wholesale Performance Assurance Plan-Idaho (OPAP-2) - 14 August 2009
- 17-
~
CERTIFICATE OF SERVICE
I do hereby cerify that a tre and correct copy of the foregoing Comments of Qwest
Corporation was served on the 14th day of August, 2009 on the followig individuals:
Jean D. Jewell
Weldon B. Stutzman
Idaho Public Utilties Commssion
472 West Washington Street
P.O. Box 83720
Boise, il 83702
j j ewell(fuc. state.id. us
.. Hand Delivery
U. S. Mail
Overnght Delivery
Facsimile
Email
Douglas K, Deney
Integra Telecom, Inc.
6160 Golden Hils Drive
Golden Valley, MN 55416
dkdenney(iintegratelecom.com
Gregory L. Rogers
Senior Corporate Counsel
Level 3 Communcations LLC
1025 Eldorado Boulevard
Broomfeld, CO 8002 i
greg.rogers(ileve13 .com
Hand Delivery-A U. S. Mail
Overght Delivery
FacsimileiEmail
Hand Delivery-A U. S. Mail
Overnight Delivery
FacsimileiEmail
Hand Delivery-.U. S. Mail
Overnght Delivery
Facsimile-A Email
Michel Singer Nelson
Associate General Counsel
360networks (USA) Inc.
867 Coal Creek Circle, Suite 160
Louisvile, CO 80027
mnelson(i360.net
bson
for Qwest Corporation