20090911Brief in Response to Qwest.pdf

WELDON B. STUTZMAN
DEPUTY ATTORNEY GENERAL
IDAHO PUBLIC UTILITIES COMMISSION
472 WEST WASHINGTON STREET
PO BOX 83720
BOISE, ID 83720-0074
Idaho Bar No. 3283
Tele: [phone]
Fax: [phone]
E-mail: weldon.stutzman(ßpuc.idaho.gov
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Attorney for Commission Staff
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE PETITION OF
QWEST CORPORATION REQUESTING
AUTHORIZATION TO WITHDRAW ITS
STATEMENT OF GENERALLY
AVAILABLE TERMS AND CONDITIONS
)
) CASE NO. QWE-T-08-04
)
) STAFF'S BRIEF IN RESPONSE
) TO QWEST CORPORATION'S
) RESPONSIVE COMMENTS
INTRODUCTION
The Commission opened this docket to consider Qwest s request to allow it to
withdraw its Statement of Generally Available Terms and Conditions (SGAT) that had been
available to proffer terms for other telecommunications companies to connect with and use
Qwest s local facilties. Qwest later clarified in a Motion that its Petition in fact "delineated two
separate requests of the Commission: the authority to withdraw the SGAT and, separately,
permission to withdraw the PAP (Performance Assurance Plan) and accompanying PIDs
(Performance Indicator Definitions)." Qwest Motion to Bifucate Issues, p. 2. The PAP or
Performance Plan with its performance stadards are in place to assure that Qwest has incentive
to maintain high interconnection standards so that the local service market remains open to
competitors. The purposes of the SGAT and the Performance Plan are widely divergent, and
even Qwest noted in earlier comments that "the SGA T on the one hand, and the PIDs and PAP,
on the other, have different origins and puroses." Qwest Responsive Comments, p. 2
(September 15, 2008).
STAFF'S BRIEF IN REPONSE TO
QWEST CORPORATION'S RESPONSIVE COMMENTS
The difference in the origins and purose of the SGAT and the Performance Plan
creates a different legal standing for them. The Commission allowed Qwest to withdraw the
SGAT, finding "no legal requirement in this state that an SGAT remain in effect." Order No.
30750, p. 8. The purose and legal significance of the Performance Plan, however, make
Qwests attempts to unilaterally withdraw it inappropriate. The Commission should issue an
Order requiring the Performance Plan to remain in effect until such time as the Federal
Communications Commission (FCC) allows Qwest to remove it.
The Performance Plan is a Legal Requirement for Qwest to Maintain
Its Long-Distance Authority
The Commission in Order No. 30750 discussed the statutory origins of an SGAT.
Staff wil not repeat that discussion here, but it is necessary to review the very different legal
framework for the Performance Plan. The SGA T and Performance Plan both result from
provisions of the Telecommunications Act of 1996 (Act), and both are related to Qwests
successful effort to obtain FCC authorization to enter the long-distace market. Section 271 of
the Act describes the review process and requirements Qwest as a Bell Operating Company
(BOC) was obligated to meet to achieve long-distace authority. The Commission sumarized
the role of an SGAT in a Section 271 proceeding: "A BOC requesting Section 271 authority
must either be a pary to at least one effective interconnection agreement (Track A), or have an
SGAT in place (Track B). 47 U.S.C. § 271(c)(1) and (2)." When Qwest sought long-distance
authority, "(t)he FCC determined, as did this Commission, that Qwest met the Track A standards
through existing interconnection agreements and so gave little attention to the Track B (SGAT)
standards. The SGAT accordingly had little significance in the FCC's approval of Qwests
Section 271 application." Order No. 30750, p. 4.
Although Qwests SGAT was not significant in its application for long-distance
authority, the Performance Plan was criticaL. A BOC wil not be granted long-distace authority
merely by meeting the complex interconnection obligations of Sections 251 and 252 of the Act.
Section 271 also includes a "competitive checklist" of14 interconnection requirements, some of
them incorporating the Section 251 and 252 obligations, a BOC must satisfy. In addition, the
FCC must find a BOC's Section 271 approval to be "consistent with the public interest,
convenience and necessity." 47 U.S.C. § 271(d)(3)(C). It is the public interest stadard in
STAFF'S BRIEF IN REPONSE TO
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Section 271 that gave rise to the FCC's requirement of a Performance Plan for approval of a
Section 271 application.
The FCC set forth its public interest analysis in an order denying Ameritech
Michigan's Section 271 application. See Application of Ameritech Michigan Pursuant to Section
271 of the Communications Act of 1934, as Amended, to Provide In-Region, InterLATA Services
in Michigan, CC Docket No. 97-137, FCC Order 97-298 adopted August 19, 1997. The FCC
concluded that Ameritech had not fully implemented the competitive checklist in Section 271,
and thus stated it was not necessar to "reach the further question of whether the requested
authorization is consistent with the public interest, convenience and necessity, as required by
section 271(d)(3)(C)." Ameritech Order ii 381, p. 193. The FCC nonetheless determined, to
expedite futue Section 271 proceedings, "to identify certain issues and make certain inquiries
for the benefit of future applicants and commenting paries, including the relevant state
commission and the Deparment of Justice, relating to the meaning and scope of the public
interest inquiry mandated by Congress." Id The FCC discussed different standards that could
apply for its public interest analysis, focusing on a primar goal to ensure the local
telecomml1ications markets remain open so that "a BOC canot use its control over bottleneck
local exchange facilties" to stifle competition:
Although the competitive checklist prescribes certain, minimum access and
interconnection requirements necessar to open the local exchange to
competition, we believe that compliance with the checklist wil not
necessarily assure that all bariers to entry to local telecommunications market
have been eliminated, or that a BOC wil continue to cooperate with new
entrants after receiving in-region, interLA T A authority. While BOC entry
into the long distance market could have procompetitive effects, whether such
benefits are sustainable wil depend on whether the BOC's local
telecommunications market remains open after BOC interLATA entry.
Consequently, we believe that we must consider whether conditions are such
that the local market will remain open as par of our public interest analysis.
Ameritech Order iiii 388, 390, p. 198. The FCC went on to describe what later became known
as Performance Assurance Plans:
In addition, evidence that a BOC has agreed to performance monitoring
(including performance standards and reporting requirements) in its
interconnection agreements with new entrants would be probative evidence
that a BOC will continue to cooperate with new entrants, even after it is
authorized to provide in-region, interLAT A services.
STAFF'S BRIEF IN REPONSE TO
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We would be paricularly interested in whether such performance monitoring
includes appropriate, self-executing enforcement mechanisms that are
suffcient to ensure compliance with the established performance standards.
That is, as par of our public interest inquiry, we would want to inquire
whether the BOC has agreed to private and self-executing enforcement
mechanisms that are automatically triggered by noncompliance with the
applicable performance stadard without resort to lengthy regulatory or
judicial intervention. The absence of such enforcement mechanisms could
significantly delay the development of local exchange competition by forcing
new entrants to engage in protracted and contentious legal proceedings to
enforce their contractual and statutory rights to obtain necessar inputs from
the incumbent.
Ameritech Order iiii 393, 394, p. 200.
Following the FCC's denial of Ameritech's application, and by the time Qwest was
preparing its Section 271 application, the FCC approved other BOC applications. In particular,
the FCC approved Southwestern Bell Telephone's application for long-distace authority in
Texas, and Southwestern's Performance Plan became the template for Qwests own Performance
Assurance Plan. See Application of SBC Communications Inc., Southwestern Bell Tel. Co. and
Southwestern Bell Communication Services, Inc., d/b/a Southwestern Bell Long Distance
pursuant to Section 271 of the Telecommunications Act of 1996 to Provide In-Region, InterLATA
Services in Texas, CC Docket No. 00-65, Memorandum Opinion and Order, 15 F.C.C. Rcd.
18354 (2000).
The FCC Determined the Performance Plan is Necessary to Ensure Qwest Maintains
Its Ongoing Interconnection Requirements
Section 271 specifies that the FCC before making a determination on a BOC' s Section
271 application must consult with the state commission to verify the BOC's compliance with the
14-item competitive checklist. Because Qwest planed to request long-distance authority in
several states at once, the state proceeding was a lengthy, complicated multi-state process,
culminating in Commission decisions issued in March and April 2002.1 As the FCC noted in its
Qwest Section 271 Order, the various state commissions, including the IPUC, "each devoted a
i Commission Decision on Qwest's Performance Assurance Plan, issued March 7, 2002; Commission Decision on
Qwest Corporation's Compliance with Section 271 Public Interest and Track A Requirements and Section 272
Stadards, issued April 1,2002; Case No. USW-T-00-3.
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significant portion of their resources to this process over a number of years." Qwest Nine State
Order, WC Docket No. 02-314, FCC Order 02-332.
Development of Qwests Performance Assurance Plan was only a par of the Section
271 proceeding. A summar of the Performance Plan process is provided in the Commission's
March 7, 2002 decision.2
The development and review of Qwests Plan (QPAP) began in earnest in
August 2000 in a collaborative process created by the Regional Oversight
Committee (ROC). The ROC is comprised of representatives of the state
commissions that oversee Qwests local exchange service. The ROC
collaborative process included five workshops, numerous conference calls and
exchanges of proposals, supporting data, and other information designed to
seek the creation of a consensus PAP. The ROC process terminated in May
2001, with many significant issues resolved by consensus, but also with many
issues remaining unesolved.
Qwest thereafter on July 16, 200 I, fied its Plan with this Commission, stating
it "is voluntaily submitted for the purose of demonstrating to the (FCC) that
Qwest will have compellng economic incentive to continue meeting the
requirements of Section 271 after it obtains approval to offer long distance
services in the state." Qwests Filng of QPAP, p. 1. Thus, despite
disagreement over some of the Plan's terms by other telecommunications
companies and Qwest competitors, Qwest was apparently satisfied its Plan
would pass muster with the FCC. Rather than let the Plan stand as fied,
however, the Commission determined, "along with the other states in the
Section 271 proceeding, to include evaluation of the QPAP in the Section 271
process." Order No. 28788, issued July 23,2001. The Commission asked the
Faciltator 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 QPAP "as part of the Section 271
requirement wil provide a record for the FCC to determine whether Qwest
has satisfied the public interest requirements for Section 271 approval." Order
No. 28788, p. 3.
Pursuant to the schedule adopted by the Commission, the Faciltator
conducted hearings, received wrtten comments and briefs, and fied his
QP AP report in October 2001. After written comments on the report were
fied, the Commission on November 9, 2001, issued a notice that the QPAP
report and comments had been filed. On January 3, 2002, the Commission
issued a Notice of Hearing on Oral Argument for the QPAP, which convened
on Januar 24, 2002.
2 The Commission determined it was appropriate to issue Decisions rather than Orders in the Section 271
proceeding.
STAFF'S BRIEF IN REPONSE TO
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Commission QPAP Decision, pp. 1-2.
In its Decision on Qwest s Performance Plan, the Commission discussed the five
components of the FCC's "zone of reasonableness" stadard it uses to review performance
assurance plans: (1) meaningful and significant incentive to comply with designated performance
stadards, (2) clearly articulated and predetermined measures and standards encompassing a
range of carier-to-carier performance, (3) reasonable structure designed to detect and sanction
poor performance when and if it occurs, (4) self-executing mechanism that does not open the
door uneasonably to litigation and appeal, and (5) reasonable assurance that the reported data
are accurate. Commission QPAP Decision, p. 3. The Commission noted that the Performance
Plan "began with a Plan already approved by the FCC, was tested and revised through a lengthy
collaborative process, then was submitted for dispute resolution to the (collaborative) Faciltator,
and finally was revised through comments and decision of this Commission." Id., p. 9. The
Commission concluded, on that record, that the "QPAP (Performance Plan) is well on its way to
meeting the FCC's zone of reasonableness standard." Id.
After concluding the state Section 271 proceeding~ Qwest fied its application for
long-distance authority with the FCC on September 30, 2002. The FCC issued a Memorandum
Opinion and Order on December 20~ 2002, approving Qwest's Application.3 The FCC Order is
280 pages long, contains more than 1,800 footnotes and 270 pages of attachments.
It is clear that the FCC placed great importce on the Performance Plan and the
related performance measures in approving Qwests application. For example, the FCC noted
the "extraordinary dedication and creativity displayed by the (nine state public utilties
commissions)," in paricular the efforts by the Regional Oversight Committee (ROC) and the
multi-state collaborative process to address Qwests regional operation support systems and
other Section 271 issues. Qwest Nine State Order iiii 2, 3. The FCC commended Qwest for its
extensive work in opening its local exchange markets and bringing its Section 271 application to
frition, and stated that "approval of this application would not have been possible without these
undertings by Qwest in cooperation with state regulators." Qwest Nine State Order ii 4. It was
these efforts, of course, that resulted in the Performance Assurance Plan and the PIDs.
3 The FCC is required to rule on a Section 271 application within 90 days of fiing. 47 U.S.C. § 271(d)(3).
STAFF'S BRIEF IN REPONSE TO
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The FCC discussed the purose of Performance Plans in the Section 271 process: "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 BOC 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." Qwest Nine
State Order ii 440, pp. 242-243. The FCC thus was particularly interested in the purose of the
Performance Plan, that is, to ensure Qwests continued compliance with interconnection
obligations once it receives authority to enter the long-distance market. The FCC found that "the
performance assurance plans (PAP) that wil be in place in the nine states provide assurance that
the local market wil remain open after Qwest receives section 271 authorization in the nine
application states." Id. ii 440.
The FCC also noted the ongoing oversight of the Performance Plans by state
commissions to ensure Qwest wil continue to meet its Section 271 obligations: "The nine state
PAPs, in combination with the respective commission's active oversight of its PAP, and these
commissions' stated intent to undertake comprehensive reviews to determine whether
modifications are necessary, provide additional assurance the local market in the (nine)
application states wil remain open." Id The FCC even noted particular terms of the
Performance Plans that it considered and regarded as important. The FCC described "several
key elements in the performance remedy plan: total liabilty at risk in the plan; performance
measurement and standards definitions; strcture of the plan; self-executing natue of remedies
in the plan; date of validation and audit procedures in the plan; and accounting requirements."
Id. ii 442. The FCC acknowledged it "has a responsibilty not only to ensure that Qwest is in
compliance with section 271 today, but also that it remains in compliance in the futue." Id ~
497.
Qwests Application to Withdraw the Performance Assurance Plan is Inappropriate
With this Section 271 background in mind, it is perhaps disingenuous for Qwest to
assert that "Based on a snapshot of the industry as BOCs completed their 271 process, Qwest
voluntarily offered the PAP," and that the Performance Plan was merely "an expedient that
STAFF'S BRIEF IN REPONSE TO
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advanced its 271 application with the FCC." Qwest Petition, p. 9 (emphasis in original); Qwest
Comments (August 14, 2009), p. 2. It was not a "snapshot of the industry" that compelled
development of the Performance Plan, it was the state of the law. Qwest knew before it
"voluntarily" made a significant investment in time and money to develop the Performance Plan
that the FCC would not approve its Section 271 application without it.
Qwest asserts in its Application that the Performance Plan was not intended to exist
forever, noting a Plan term that calls for the Commission and Qwest to "review the
appropriateness of the PAP and whether its continuation is necessar" after Qwest begins
providing long-distance service directly rather than through a long-distance affiliate. Qwest
Application, p. 10. Qwest did not propose any review process, however, and instead simply
argues that the Performance Plan no longer is necessar because "Qwest has consistently
provided good service to CLECs" and "Qwest remains committed to providing good service to
CLEC customers." Qwest Application, p. 11. Qwest accordingly requests an order from the
Commission "finding the PAP and PIDs are no longer necessar and may be withdrawn," and
that the Commission's finding constitute a change of law requiring the Performance Plan and
PIDs to "be removed from existing (interconnection) agreements and not be included in future
agreements." Qwest Application, pp. 12-13.
Only the FCC Can Authorize Removal of Qwests Performance Plan
Section 271 specifically grants enforcement of that Section's requirements to the
FCC rather than to state commissions. Section 271 (d)(6) states that if the FCC "at any time after
approval of an (Section 271) application, . . . determines that a Bell Operating Company has
ceased to meet any of the conditions required for such approval," the FCC may issue an order to
the company to correct the deficiency, impose a penalty on the company, or suspend or revoke
its Section 271 authority. 47 U.S.C. § 271(d)(6) (italics added). The FCC in its order approving
Qwests Section 271 application acknowledged that state commissions wil continue to review
and monitor Qwests interconnection commitments under the Performance Plan, but the ultimate
enforcement authority lies with the FCC.
The Performance Plan itself contains review provisions, including the one cited by
Qwest requiring the Commission to review the appropriateness of the Plan. Another section of
the Performance Plan makes clear that the purpose of state commission reviews of the Plan
"would serve to assist commissions in determining existing conditions and reporting to the FCC
STAFF'S BRIEF IN REPONSE TO
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on the continuing adequacy of the PAP to serve its intended fuctions." Qwest Idaho SGAT
Third Revised, Section 16.2, Sixth Amended Exhibit K, June 26, 2007 (italics added). Both the
specific enforcement responsibilty in Section 271, and the language contained in the
Performance Plan, make clear it is the FCC that must determine whether the Plan no longer is
required as a condition of long-distace authority for Qwest. This Commission has a monitoring
responsibility, and should periodically review whether adjustments should be made to the
Performance Plan and PIDs, but the question of removal of the Plan is for the FCC.
Curiously, Qwest recognizes in its recent comments that "state commissions do not
possess power to determine or enforce section 271 requirements," and that "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." Qwest Comments (August 14,2009), p. 14. Qwest
does not state the expected conclusion from this argument, however, that the proper foru for its
request to withdraw the Plan is the FCC. Instead, with bewildering logic, Qwest contends that
"so long as Qwest remained willng to provide its PAP, the issue of the Commission's
enforcement authority under section 271 was not raised," and concludes only that subsequent
legal authorities "make clear the Commission lacks regulatory authority to require Qwest to
continue to offer the PAP." Qwest Comments (August 14,2009), pp. 14-15.
The Act contains an explicit provision for BOCs to request permission from the FCC
for relief from specific Section 271 requirements. Section 10 of the Act states that the FCC
"shall forbear from applying any regulation or any provision of this Act to a telecommunications
carier or telecommunications service, or class of telecommunications carers or
telecommunications service" when the standard for forbearance is met. 47 U.S.C. § 160(a).
Qwest has availed itself of this provision of the Act several times, including in a case
culminating in an FCC order released July 25, 2008. See In the Matter of Petitions of Qwest
Corporation for Forbearance Pursuant 47 Us. C. Section 160(c) in the Denver, Minneapolis, St.
Paul, Phoenix, and Seattle Metropolitan Statistical Areas, WC Docket No. 07-97, FCC Order
08-174, July 25,2008 (Qwest Forbearance Order). Qwest's recent experiences with applications
filed with the FCC may explain its reluctance to file another application with that agency.
In the Qwest Forbearance case, Qwest asked forbearance from loop and transport
unbundling obligations required by Sections 251(c) and 271(c)(2)(B)(ii) and other dominate
carier requirements arising under different provisions of the Act. For example, Qwest requested
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relief from checklist item 2 in Section 271, requiring a BOC to provide nondiscriminatory access
to network elements according to the requirements of Sections 251(c)(3) and 252(d)(1). The
FCC noted that "(a)fter a BOC obtains section 271 authority to offer in-region, interLATA
services, these threshold requirements become ongoing requirements." Qwest Forbearance
Order, p. 3, footnote 11.
The Qwest Forbearance case is relevant here for the stadard the FCC applies to a
BOC's request for relief from its Section 271 obligations. The FCC's stadard for reviewing a
forbearance request is a determination that "(1) enforcement of the regulation is not necessar to
ensure that the telecommunications carier's charges, practices, classifications, or regulations are
just, reasonable, and not unjustly or uneasonably discriminatory; (2) enforcement of the
regulation is not necessary to protect consumers; and (3) forbearance from applying such
provision or regulation is consistent with the public interest." Qwest Forbearance Order, p. 9;
47 U.S.C. § 160(a). In addition, the FCC must consider "whether forbearance from enforcing the
provision or regulation wil promote competitive market conditions." Id. In that case, Qwest
claimed that competition from other local exchange companies in Denver, Minneapolis-St. Paul,
Phoenix and Seattle entitled it to relief from specific dominant carier obligations in those service
areas.
The FCC applied the review standard and the precedents from its earlier decisions to
Qwest's evidence, and concluded "that forbearance from the application to Qwest of the Section
251(c)(3) obligations to provide unbundled access to loops, sub-loops, and transport to
competitors in the four MSAs (metropolitan statistical areas) does not meet the standards set
forth in Section 10(a). Specifically, the record evidence in this proceeding demonstrates that
Qwest is not subject to a sufficient level of facilties-based competition in the four MSAs to grant
relief under the Commission's precedence." Qwest Forbearance Order, p. 26. Clearly the
FCC's evaluation of the presence of competitors differed from Qwest's. The FCC stated:
"Although Qwest cites a significant amount of retail enterprise competition relying upon Qwest's
special access services and UNEs (unbundled network elements), we found above that the levels
of facilties-based competition do not justify forbearance and the evidence of additional
competition that relies on Qwest's wholesale services is insuffcient to warant forbearance."
Qwest Forbearance Order ii 37, pp. 28-29. The FCC concluded its public interest review of the
unbundling element par of the application by stating, "having found above that UNEs remain
STAFF'S BRIEF IN REPONSE TO
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necessary for the protection of consumers and to ensure just and reasonable and not unjustly and
unreasonably discriminatory prices, terms and conditions in these MSAs, we conclude that
forbearing from UNE obligations is not in the public interest." Qwest Forbearance Order ii 43,
p.31.
The Qwest Forbearance Order demonstrates that the FCC carefully reviews a BOC's
request for forbearance from its Section 271 obligations. The standard the FCC uses, as
established in Section lO(a) of the Act and as clarified in FCC forbearance decisions, is not an
easy one. Even though Qwest presented evidence of a competitive presence in the four MSAs,
the FCC concluded that the difficult standard for forbearance from Section 271 obligations was
not met. The decision also demonstrates that Qwest's view of the status of active competitors in
its service areas, and its correspondent Section 271 obligations, may be different than that of a
reviewing agency. The FCC denied Qwest's application on all issues.
Like the unbundling obligations and other specific requirements challenged by Qwest
in the Qwest Forbearance case, the requirement of a Performance Plan arises under a provision
of Section 271. The FCC concluded that BOCs will need a carefully defined monitoring program
in place to satisfy the public interest requirement in Section 271(d)(3)(C). The usual forbearance
process outlined in the Act applies to Qwest's desire to withdraw the Performance Plan.
Review of the Effectiveness of the PAP requires more than Qwests Assurances,
and must begin with the Liberty Report
The question of elimination of the Performance Plan is for the FCC, but this
Commission does have authority to review the Plan for effectiveness and make changes to it. It
was significant to the FCC in approving Qwest's Section 271 application that state commissions
intended "to underte comprehensive reviews to determine whether modifications are
necessary," because such reviews "provide additional assurance the local market in the (nine)
application states wil remain open." Qwest Nine State Order, ii 440, p. 243. Paragraph 16.3 of
the PAP, cited by Qwest for authority to withdraw it, calls for the Commission "to review the
appropriateness of the PAP and whether its continuation is necessar." Qwest does not propose
any review process or standard to determine whether the PAP remains necessary to serve its
intended fuctions.
Qwest's claim that the Performance Plan is no longer useful must be measured by
evidence and a meaningful review standard. It may be that the comprehensive measures and the
STAFF'S BRIEF IN REPONSE TO
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extensive monitoring of the curent Plan may be scaled back, but it is not possible to know that
without some kind of meaningful review. The purpose, of course, is to ascertin whether Qwest
has "adequate incentives to continue to satisfy the requirements of section 271 after entering the
long distance market." Qwest Nine State Order, ii 440, p. 242.
Qwest asserts in its recent comtrents "that the evidence shows that Qwest already has
suffcient 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 a good service to its CLEC customers aligns with Qwest's financial incentives."
Qwest Comments (August 14,2009), p. 28. The only relevant evidence in the record to date is
the Liberty Report, and that report concludes that the Performance Plan must remain in place to
ensure Qwest continues to meet its interconnection obligations.
Qwest also offers "a new transitional approach for performance assurance in the form
of QPAP-2, and proposes that the Commission and paries recognize this as a replacement for the
current Idaho PAP and as an appropriate method for transitioning away from that plan." Qwest
Comments (August 14, 2009), p. 28. Staff welcomes a discussion and hearing on a modified
Performance Plan, consistent with the Commission's authority to monitor, review and revise the
existing Plan. The starting point for that review should be the Libert Report. Qwest has
expressed reservations with particular findings in the report, and should be given an opportity
to explore those concerns in a hearng. That process can include review by the Commission and
paries of Qwest's proposed "QPAP-2."
CONCLUSION
The FCC determined that the Performance Plan is a legal requirement under Section
271 of the Act. Qwest agrees that the FCC has the ultimate enforcement authority of Section 271
requirements. Thus, the Commission should issue an Order requiring the Performance Plan to
remain in effect until such time as the FCC determines it no longer is required.
Consistent with the Commission's authority to monitor, review and revise the existing
Plan, the Commission should use the Liberty Report as the basis for the review called for by the
terms of the Performance Plan.
STAFF'S BRIEF IN REPONSE TO
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Respectfully submitted this V\~day of September 2009.
ß~~
Weldon B. Stutzman
Deputy Attorney General
blslN :QWE. T.08.04_ ws_Brief
STAFF'S BRIEF IN REPONSE TO
QWEST CORPORATION'S RESPONSIVE COMMENTS 13
CERTIFICATE OF SERVICE
I HEREBY CERTIFY THAT I HAVE THIS 11th DAY OF SEPTEMBER 2009,
SERVED THE FOREGOING STAFF'S BRIEF IN RESPONSE TO QWEST
CORPORATION'S RESPONSIVE COMMENTS, IN CASE NO. QWE-T-08-4, BY
MAILING A COPY THEREOF, POSTAGE PREPAID, TO THE FOLLOWING:
MARY S HOBSON
QWEST CORPORATION
999 MAIN ST, SUITE 1103
BOISE ID 83702
E-MAIL: mar.hobsoncmgwest.com
ADAMLSHERR
CORPORATE COUNSEL
QWEST CORPORATION
1600 7TH AVE, ROOM 3206
SEATTLE WA 98191
E-MAIL: adam.sherrcmgwest.com
MICHEL SINGER-NELSON
ASSOCIATE GENERAL COUNSEL
360NETWORKS (USA) INC
867 COAL CREEK CIRCLE, SUITE 160
LOUISVILLE CO 80027
E-MAIL: mnelsoncm360.net
DOUGLAS K DENNEY
DIRECTOR COSTS & POLICY
INTEGRA TELECOM
6160 GOLDEN HILLS DR
GOLDEN VALLEY MN 55416-1020
E-MAIL: dkdenneycmintegratelecom.com
s~w~
CERTIFICATE OF SERVICE