20090615Prehearing Brief.pdf

Mar S. Hobson
Attorney & Counselor
999 Main, Suite n08
Boise, ID 88702
208-885-8666
RECEfVEn
2ll9 JUN '5 PH 2: 56
IDAHO PUBLici
UTILITIES COMMISSION
June 15,2009
VIA HAND DELIVERY
Jean D. Jewell, Secretar
Idaho Public Utilties Commission
472 West Washington
Boise, ID 83702-5983
RE: Docket No. QWE- T -08-07
Dear Ms. Jewell:
Enclosed for filing wîth this Commission are eight (8) copies ofQWEST CORPORATION'S
PRE HEARNG BRIEF.
If you have any questions, please contact me. Thank you for your cooperation in this matter.
Very trly yours,
Ativrvg I-l-
Mars.~son
Enclosures
RECEIVED
ZO9 JUN 15 PH 2: 57
IDAHO P ieUTILITIES co ISSlON
Mar S. Hobson (ISE. No. 2142)
999 Main, Suite 1103
Boise, il 83702
Tel: [phone]
mary;hobsonrægwest.com
Alex Duare
Corporate Counsel, Qwest
421 SW Oak Street, Suite 810
Portland, OR 97204
503-242-5623
Alex.Duare~qwest.com
Attorneys for Qwest Corpration
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF QWEST
CORPORATION'S PETITION FOR
APPROVAL OF NON-IM AIRD WIRE
CENTER LISTS PURSUANT TO THE
TRIENNIA REVIEW REMAND ORDER
Case No. QWE-T-08-07
QWEST CORPORATION'S
PREHEARNG BRIEF
QWEST CORPORATION'S POST -HEARNG BRIF
TABLE OF CONTENTS
INTRODUCTION AND SUMMAY ........................................................................................ 1
PERTINENT PROCEDUR HISTORY AND BACKGROUND ........................................5
BACKGROUND OF THE 1996 TELECOMMUNICATIONS ACT, TRRO AN TRRO
ANALYTICAL FRAEWORK.................................................................................................6
I. Telecommunications Act of 1996, and pre-TRRO (TRO and USTA II) .......................6
II. The TRRO ....... ............ ...... ....... ............................................ .................. ............... ............. 8
A. TRRO background, definitions and FCC implementation rules ..... ......................... 8
B. TRRO wire center tier structure ............................................. ............ ............... ........ 11
C. TRRO non-impairment thresholds ............................................................................ 12
1. High-capacity interoffce transport....................................................................... 12
2. High-capacity loops.................................................................................................. 13
D. Non-impairment effect, and no reclassification of impairment............................. 14
STATEMENT OF PERTINENT FACTS ................................................................................ 14
I. QWEST'S METHODOLOGY FOR COUNTING BUSINESS LINES.............15
A. TRRO and FCC rule definitions of "business lines" ................................................ 15
B. Qwests application of FCC business line definitions and methodology ............... 16
1. Inclusion of residential and non-switched UNE loop counts ............. ......... ........ 16
2. 64 kbps VGE adjustments...................................................................................... 17
C. Two Idaho wire centers meet non-impairment based on business lines ................ 17
II. QWEST'S PROCESS FOR IDENTIFYING FIBER-BASED COLLOCATORS... 18
A. TRRO and FCC rule definitions of fiber-based collocators ............. ............ ........... 18
B. Qwests processes to identify fiber-based collocators.............................................. 18
C. Two Idaho wire centers meet non-impairment based on collocators..................... 20
III. QWEST'S PROCEDURES FOR FUTURE NON-IMPAIRED WIR CENTERS..21
A. Need for procedures for establishing future non-impaired wire centers............... 21
B. The Multi-State Settlement Agreement ............... ..................................................... 21
IV. QWEST'S NONRECURRG CHARGE FOR CONVERSIONS OF UNEs TO
ALTERNATIV QWEST SERVICES .................................................................... 23
A. Work activities involved in converting a UNE to an alternative service ...............23
B. Qwests Design Change Charge................................................................................. 25
i
QWEST CORPORATION'S POST-HEARNG BRIEF
ARGUMENT ...............................................................................................................................25
I. QWEST'S BUSINESS LINE COUNTS MEET THE TRRO THRESHOLDS, AND
THUS BOTHE BOISE MAIN AND BOISE WEST AR NON-IMPAID ...... 25
A. Qwest correctly counts TRRO business lines............................................................ 27
1. Business lines include all UNE loops ............. ........................... ............ ................. 27
2. Qwest correctly counts all 64 kbps voice-grade equivalents............................... 32
3. December 2007 line counts are appropriate for Boise Main DS3 loops............. 35
B. The CLECs' adjustments are improper ................................................................... 36
C. Non-impaired wire centers in Idaho based on business lines ................................. 38
II. QWEST'S COLLOCATOR EVIDENCE AND PROCESSES MEET THE TRR038
A. The CLECs agree that both Boise Main and Boise West are non-impaired......... 38
B. Qwests process to identify collocators is reasonable and should be adopted....... 39
III. THE COMMISSION SHOULD ADOPT THE PROCEDURES IN THE
SETTLEMENT AGREEMENT................................................................................41
A. Qwest has not violated the Settlement Agreement by proposing its methods and
procedures for use for future non-impairment proceedings here in Idaho........... 42
B. The methodolog and procedures in the Settlement Agreement are reasonable, in
the public interest and comply with the TRRO, and the affected CLECs agreed. 44
C. The CLECs' other arguments about the methods and procedures lack merit ..... 44
IV. A 90-DAY TRASITION PERIOD IS REASONABLE AND ADEQUATE ......46
V. QWEST IS ENTITLED TO ASSESS AN NRC TO CONVRT UNEs TO
SUBSTITUTE SERVICES IN NON-IMPAIRED WIR CENTERS...............47
THE REQUESTED NOTICE REQUIREMENTS SHOULD BE REJECTED ...51
THE NON-IMPAIRMENT EFFECTIV DATE SHOULD BE 30 DAYS AFTER
QWEST FILED ITS DATA...... ............. ...... ............... ......... ......... ....... .53
VII. THE COMMISSION'S NON-IMPAIRMENT DESIGNATIONS SHOULD BE
OF GENERAL APPLICABILITY AND THUS BINDING ON ALL CLECs ..... 56
CONCLUSION ........................................................................................................................... 57
A.
B.
VI.
VI.
The CLECs' arguments against the conversion NRC are without merit.............. 47
Qwests Design Change Charge is a reasonable proxy............................................ 50
ii
QWEST CORPORATION'S POST-HEARNG BRIEF
Qwest Corporation ("Qwest"), pursuant to Commission Order No. 30763, respectfully
submits its opening post-hearng brief.
INTRODUCTION AND SUMMARY
In Februar 2005, the Federal Communications Commission ("FCC") issued its Triennial
Review Remand Order ("TRRO,,).l In the TRRO, the FCC established rules for incumbent local
exchange carrers ("ILECs") like Qwest who are providing unbundled network elements (UNs)
pursuant to the federal Telecommunications Act of 1996 ("the Act,,).2 Specifically, the TRRO
addressed the requirements for providing unbundled high-capacity (DS I/DS3/dark fiber) loops
and unbundled high-capacity (DSl/DS3/dak fiber) interoffice transport. The FCC intended the
TRRO's unbundling rules to be largely self-effectuating and implemented through negotiations
between ILECs and competitive local exchange carers ("CLECs") such as the Intervenors in
this case. The FCC also required Qwest to provide a list of wire centers that met the TRRO's
requirements and the FCC's associated rules for every state in its ILEC region, including Idaho.
Based on the FCC's TRRO mandates and the FCC's associated implementation rules,
including the TRRO's three-tier strcture for wire center non-impairment based on the count of
"business lines" or "fiber-based collocators" at a given wire center, Qwest wil show that one
Idaho wire center, Boise Main, meets the FCC's transport threshold for "Tier 1" non-impairment
and another, Boise West, meets the standard for "Tier 2" non-impairment. Qwest wil make this
showing by correctly following the TRRO and FCC requirements for counting "business lines"
and "fiber-based collocators" in paragraphs 102 and 105 of the TRRO and the FCC's associated
implementation rules, as well as the methodology that Qwest and numerous other CLECs,
1 In the Matter of Review of Unbundled Access to Network Elements, Review of Section 251 Unbundling
Obligations of Incumbent Local Exchange Carriers, Order on Remand, ee Docket No. 01-338, we Docket No. 04-
313,20 Fec Rcd 2533, (2004) ("Triennial Review Remand Order" or "TRRO"). (Albersheim Dir., p. 11, fn. 11.)
2 Telecommunications Act of 1996, Pub. L. Non 104-104, 11 Stat. 56, codified as 47 u.s.e. § 151, et seq.
(Albersheim Dir., p. 4, fn. 1.)
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QWEST CORPORATION'S POST-HEARNG BRIF
including an intervenor here, have agreed to as par of a multi-state settlement agreement in six
other states that addressed TRRO wire center non-impairment dockets before Qwest fied this
Idaho proceeding. One of the purposes of this case is to determne the correct methods for
counting business lines and fiber-based collocators for futue non-impairment proceedings.
Qwest wil also show that it has met the FCC's requirements in 47 CFR § 51.319(a)(5)(i)
for non-impairment for DS3 (high-capacity) loops in the Boise Main wire center; a showing that
is again based on both business line and fiber-based collocator counts in that wire center.
On the subject of non-impaired loops, Qwest notes that since the FCC has determined
that there is no impairment for "dark fiber" loops on a nationwide basis, Qwest is no longer
obligated to provide unbundled dark fiber loops in any wire center. 47 CFR § 51.319(a)(6)(i).
The significance of a non-impairment finding pertains to the pricing of elements that
were formerly provided as UNs. The Act requires Qwest to base its UN prices on a forward-
looking economic cost concept (Total Element Long Run Incremental Cost, or "TELRIC"),
which are generally established in state utilities commission cost dockets. (Direct Testimony of
Renée Albersheim ("Albersheim Dir."), pp. 7-8.) However, if a UNE is eliminated under the
stadards of the TRRO, Qwest may stil offer an equivalent service at a market-based rate, and
the CLEC has the option of purchasing the commercial equivalent for the UN from Qwest,
purchasing the service or facilty from another provider, or self-provisioning the service or
facility itself. (Id., pp. 8, 12-13.)
In summar, if the Boise Main and Boise West wire centers are confirmed as non-
impaired as Qwest contends in this docket, then certain services wil no longer be available as
UNs because the terms of the TRRO have established that there is suffcient competition in
these wire centers. In the Boise Main wire center, DS3 unbundled loops wil no longer be
available, and between the Boise Main and Boise West wire centers, DS3 transport and dark
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QWEST CORPORATION'S POST-HEARNG BRIEF
fiber transport wil no longer be available as UNs. (See Qwest Exhibit ("Ex.") 2.) As stated,
CLECs have the option to convert these services to alternative tarffed Qwest services, buy these
services from other providers, or self-provision these services. (Albersheim Dir., pp. 8, 12-13.)
The CLECs who have intervened in this docket, 360networks (USA) inc., and a group of
companies collectively referred to as "Integra" (''the CLECs")), have raised a number of
arguents. However, not surrisingly, most state commissions addressing these issues have
agreed with the positions that Qwest has taken on these disputed issues.
In addition to confirmng Qwests determinations of specific wire center non-impairment,
this docket also addresses the procedures that the Commission should adopt for future non-
impairment proceedings. Qwest has proposed a simple, straghtforward, expeditious and
common sense (in short, a self-effectuating) process for the updating of non-impaired wire
centers in the future. Indeed, this is a process that Qwest and a number of CLECs, including
Integra (an intervenor in this docket), have negotiated and agreed to, and that five other
commissions in Qwests ILEC region have approved. As Qwest wil show, the proposed process
follows the FCC's intent for a self-effectuating process designed to remove unbundling
obligations over time. Thus, if and when updates to the non-impaired wire center list are
required, Qwest intends to update the wire center list using the same methodology and process it
has employed here.3 However, the Commission should not require Qwest to have to provide
"advance notice" of possible non-impairment (when a wire center is within 5,000 business lines
or one fiber-based collocator of non-impairment), as such advance notice is imaterial, unduly
burdensome and simply provides an opportity for CLEC gamesmanship.
3 Qwest wil also show that the CLECs' arguent that Qwest's presenting the methodology and processes
of ths settlement agment as a proposal for the Commission to follow for future non-impaient proceedings is
somehow a "breach" of the settlement ageement is incorrect and without any basis.
3
QWEST CORPORATION'S POST-HEARNG BRIEF
On another issue, Qwest wil show it is entitled to recover its reasonable costs for the
work it must perform for the conversion of a UN circuit to an alternative Qwest service or
facilty, such as a private line or special access circuit, at those wire centers that are deemed non-
impaired. As such, Qwest is entitled, and thus intends, to charge the $25 nonrecurrng charge
("NRC") it negotiated with the numerous CLECs in other states, and which five commissions
have approved. This $25 NRC is a reasonable compromise, given that Qwests Design Change
Charge on which it is based best approximates the cost that Qwest wil incur when performing
these conversion work activities as a direct result of a CLEC choosing to remain on Qwests
network instead of seeking available non-Qwest alternatives. And when a CLEC does convert
UNEs to non-UNE services, the transition period should be 90 days, and not six months, as the
CLECs advocate. (Rebuttl Testimony ofRenée Albersheim ("Albersheim Reb."), pp. 25-27.)
Finally, Qwest believes the Commission should make the effective date of the non-
impairment designations for both wire centers to be July 27, 2008, which is 30 days after Qwest
submitted its data on June 27, 2008 in support ofits non-impairment petition. This 30-day
period is within the spirit of the multi-state settlement agreement, and is also appropriate to
ensure that there is no incentive for CLECs to delay or unreaonably object to Qwests petitions
in the future. The Commission should also make any non-impairment determnations it makes in
this docket to be of general applicabilty, and thus binding on all CLECs in Idaho.
Accordingly, Qwest respectfully submits the Commission should (1) declare that the two
Idaho wire centers which Qwest presents here (Boise Main and Boise West) are non-impaired
pursuant to the guidelines and standards in the TRRO and the FCC's associated implementation
rules, (2) find that Qwests methodology to count "business lines," and its process to identify
"fiber-based collocators," are reasonable and should be adopted, (3) find that Qwests procedures
to update the non-impaired wire center list in the future as set fort in the multi-state settlement
4
QWEST CORPORATION'S POST-HEARNG BRIEF
agreement are reasonable and should be adopted, (4) acknowledge Qwests right to charge
CLECs a nonrecurng charge when CLECs convert from a UNE to an alternative Qwest product
or service at non-impaired wire centers, (5) reject the CLECs' arguments seeking a six-month
trsition period and advance notice of Qwest seeking non-impairment designations,
(6) establish that the effective date of the non-impairment is July 27, 2008, or 30 days after
Qwest fied its Petition, and (7) rule that its non-impairment determnations are of general
applicabilty and thus binding on all CLECs operating in the state.
PERTINENT PROCEDURA HISTORY AND BACKGROUND
On June 20, 2007, Qwest fied its petition requesting that the Commission to (l) open an
investigation to develop a Commission-approved initial list of "non-impaired" wire centers
puruant to the "TRRO," (2) allow pary review and discussion of that data and (3) implement a
process of updating and approving the lists. As par of that Petition, Qwest asked the
Commission to adopt the procedures for future non-impairment designations that are set forth in
a multi-state settlement agreement that Qwest and a number ofCLECs, including intervenor
Integra, negotiated and agreed to in varous other states, and which five state utilty commissions
have approved. Thereafter, on June 27, 2008, Qwest fied its confidential data in support of its
Petition, together with an Attorney's Certificate of confidentiality.
On July 9, 2008, the Commission issued a Notice of Petition and Notice ofIntervention
Deadline, and petitions to intervene subsequently were filed and approved for 360networks
(USA) inc. ("360") and a group of companies collectively referred to as Integr. A protective
agreement to control the distribution of confidential information was executed by the paries in
Janua 2009. On Februar 6, 2009, Qwest fied a Motion for Informal Prehearng Conference
to establish a schedule for completing the case.
5
QWEST CORPORATION'S POST -HEARNG BRIEF
Following a discussion among the paries and the Commission Staff the Commission
entered Order No. 30763. Pursuant to that Order, Qwest pre-filed the direct testimony of
(I) Renée Albersheim, which discusses the background and strcture of the TRRO generally,
Qwest's interpretation of the FCC's TRRO methodology for counting business lines, Qwest's
process for updating its wire center list in the future, and the multi-state settlement agreement;
(2) Rachel Torrence, whose written testimony covers Qwest's identification of fiber-based
collocators in the Boise Main and Boise West wire centers, as well as the process that Qwest
uses for identifying and counting fiber-based collocators, as Qwest and the numerous CLECs had
agreed to in the multi-state settlement agreement, and (3) Victoria Hunnicutt whose testimony
concerns the nonrecurrng charge ("NRC") that wil be applied to CLECs for the conversion of
UNs to alternative Qwest services. The direct testimony of Ms. Albersheim and Ms. Torrence
includes Qwest Highly-Confdential Exhibits 5 (Albersheim) and 8-10 (Torrence).
On May 22,2009, the CLECs fied the testimony oftheir joint witness, Douglas Denney,
an employee of intervenor Integra, with seven exhibits (Exs. 201 through 207, including Highly-
Confidential Exhibits 206 and 207). Thereafter, on June 10,2009, Qwest fied its response
testimony of Ms. Albersheim, Ms. Torrence and Ms. Hunnicutt, along with one confidential
exhibit for Ms. Torrence (Confidential Exhibit 11).
The paries are scheduled to appear for an evidentiar hearng on Monday, June 22, 2009.
BACKGROUND OF THE 1996 TELECOMMUNICATIONS ACT, TRRO AND TRRO
ANALYTICAL FRAMEWORK
I. Telecommunications Act of 1996, and pre-TRRO (TRO and USTA ID
The Telecommunications Act of 1996 ('"the Act") was a significant change in the law
governing telecommunications in the United States. The Act's primary purpose was to promote
competition in local telephone service markets, thereby giving consumers a choice oflocal
6
QWEST CORPORATION'S POST-HEARNG BRIF
service providers. (Albersheim Dir., p. 4.) Among other things, the Act required Incumbent
Local Exchange Carers ("ILECs") such as Qwest4 to unbundle, or break apar, the physical
functional components of their telephone networks, and lease these components, or piece par,
known as Unbundled Network Elements ("UNs"), to Competitive Local Exchange Carers
("CLECs"). (Id.)
The Act requires the FCC to review the state of competition every three year.5 This
process is known as a ''tennial review." As par of its triennial review process, in 2001, the
FCC initiated a proceeding to review its policies on unbundling under the Telecommunications
Act of 1996 ("the Act,,).6 The FCC sought "comment on how best to update its rules and make
them more 'granular' to reflect competitive conditions in different markets.,,7 The FCC's intent
was to ensure that its unbundling rules were faithful to the requirements of the Act, but at the
same time that such rules reflected changes in the telecommunications marketplace and advances
in technology. (Albersheim Dir., pp. 8-9f Upon completion of the Triennial Review, the FCC
published its Triennial Review Order ("TRO") in October 2003.9 The TRO revised the FCC's
list ofUNs and removed unbundling requirements for broadband services in order to encourage
4 Qwest was known as US WEST at the time the Act was passed. (Albersheim Dir., p. 4, fu. 2.)
547 U.S.C. § 257(c). (Albersheim Dir., p. 8, fn. 4.)
6 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, Notice of Proposed
Rulemakng, 16 FCC Rcd 22781 (2001) ("Triennial Review NPRM'). (Albersheim Dir., p. 8, fu. 5.)
7 htt://ww.fcc.gov/wcb/cpdtrennial review/. (Albersheim Dir., p. 9, fu. 6.)
8 In the Matter of Review of Unbundled Access to Network Elements, Review of Section 251 Unbundling
Obligations of Incumbent Local Exchange Carriers, Order on Remand, CC Docket No. 01-338, WC Docket No. 04-
313,20 FCC Rcd 2533, at 2 (2004). (Albersheim Dir., p. 9, fu. 7.)
9 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
Wireline Services Ofering Advanced Telecommunications Capability, CC Docket Nos. 01-338, 96-98, 98-147,
Report and Order and Order on Remand and Furer Notice of Proposed Rulemakng, 19 FCC Rcd 16978, 17145
(2003) ("Triennial Review Order" or "TRO"). (Albersheim Dir., p. 9, fu. 8.)
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QWEST CORPORATION'S POST -HEARNG BRIEF
investment in broadband facilties. The TRO also established a significant role for state
commissions to determine impairment in markets for dedicated transport. (Id., p. 9.)
The TRO was then appealed to the D.C. Circuit Court of Appeals. The D.C. Circuit
upheld a number of the TRO's rules, but vacated and remanded the FCC's findings of nationwide
impairment for dedicated transport. The D.C. Circuit also vacated the FCC's delegation of
authority to state commissions to conduct granular impairment analysis as the TRO had
established. United States Telecom Ass 'n v. FCC, 359 F.3d 554 (2004) ("USTA IF'). The USTA
II court determined that the FCC did not properly relate the possibilty of competitive
deployment of facilties in one market to the actual deployment of facilties in similar geographic
markets. Id. at 575. (Albersheim Dir., p. 10.) Accordingly, in August 2004, the FCC issued an
Interim Order and Notice of Proposed Rulemaking ("NPRM') eliminating a number of sections
of the TRO, and sought comment on a response to USTA II. Afer receiving such comments, the
FCC issued the TRRO on Febru 4, 2005. (Id., pp. 10-11.)
II. The TRRO
A. TRRO background, definitions and FCC implementation rules
As discussed below, the TRRO determines whether or not ILECs are stil required to
provide specific UNs to CLECs. Relevant to this proceeding, the TRRO clarfied ILEC
obligations to provide unbundled access to dedicated interoffce transport and high-capacity
loops. (Albersheim Dir., p. 11.)
An "unbundled loop" is a "UN" (unbundled network element). In its most basic form a
"loop" is a pair of wires that connect an end-user's (or customer's) telephone to a telephone
company switch, which then connects the end-user to the rest of the company's telephone
network, in order to route calls to their final destinations. (Albersheim Dir., p. 5.) If a CLEC
8
QWEST CORPORATION'S POST-HEARNG BRIEF
(Qwest competitor) leases an unbundled loop from an ILEC (such as Qwest), the CLEC can
connect the end-user to its own switch. (Id.)
There are different "sizes" or capacities of unbundled loops. The "loop" described
above, for a single end-user, is known as a "DSO," or a "voice-grade" loop. In simplest terms,
this is one telephone line. (Albersheim Dir., p. 5.) These lines can be grouped together into
larger capacities, and it is these high-capacity loops that are addressed under the TRRO. Above
the single line (DSO) level, the next larger capacity is known as a "DSl." A DSI is equivalent to
24 DSOs, or 24 lines. (Id., pp. 5-6.) The next larger capacity is known as a "DS3." A DS3 is
equivalent to 28 DSls, or 672 DSOs (Le., 672 telephone lines, or 28 DSls (28 X 24:: 672)).
DSI and DS3 unbundled loops are also known as "high-capacity" loops. (Id., p. 6.)10 As
discussed below, the TRRO determines whether or not Qwest is stil required to provide
unbundled high-capacity loops to CLECs in certin wire centers.
The TRRO also addressed "unbundled interoffice transport." "Unbundled interoffce
trsport" is a physical facilty that a CLEC can lease from Qwest to create a transmission path
from one Qwest wire center to another Qwest wire center. 11 Such a transmission path would be
used by a CLEC to car its telecommunications traffc between two wire centers. (Albersheim
Dir., p. 9.) Like unbundled loops, interoffce transport facilties come in different sizes or
capacities. The capacities relevant to this case are DS i and DS3 interoffce transport facilties.
These facilties are also known as high-capacity transport facilties. (Id.)
¡Orhis description has been simplified. There are other technical specifications which determine whether a
loop can ca voice traffic. Such techncal detal is not necessai to this discussion. (Albersheim Dir., p. 6, fn. 3.)
II A "wire center" is the physical strcte (a building) where a telephone company connects local phone
lines to its telephone network. A wire center is sometimes referred to as a "central offce." The wire center usualy
contans one or more telephone switches, which connect the varous pars of the telephone network together and
route calls to their fmal destination. In Idao, most communities have a single wire center. However, Boise,
because of its relative size, has thee wire centers serving the community. (Albersheim Dir., pp. 4-5.)
9
QWEST CORPORATION'S POST-HEARNG BRIF
Another network element addressed by the TRRO that is relevant to this docket is "dark
fiber." "Dark fiber" is fiber optic cable though which no light is being transmitted, and
therefore no signal is being carred. (Albersheim Dir., p. 7.) Once dark fiber is connected to the
proper electronics to allow the transmission of light, the fiber is no longer "dark" and is then
known as "lit fiber." Dark fiber can be used to provide both loops and interoffce transport. (Id.)
ILECs were formerly required by the Act to make unbundled dak fiber available to CLECs. As
wil be discussed in detail below, the TRRO determines whether or not ILECs are stil required to
provide dark fiber to CLECs.
The TRRO also clarfied the FCC's "impairment" standard (whether CLECs' abilty to
compete is "impaired" such that a paricular UN is "necessar" for CLECs to compete
effectively). Impairment is now evaluated as it relates to the capabilties of a "reasonably
effcient competitor:' TRRO, at 1124. Using this stadad, the TRRO established route-by-route
unbundling requirements for dedicated interoffce transport, depending on the number of
"business lines,,12 and "fiber-based collocators,,13 in paricular wire centers. For DSI and DS3
loops, the FCC used a methodology similar to its treatment of high-capacity transport. That is,
the FCC established a wire center-by-wire center unbundling requirement to determine whether a
wire center is subject to actual or potential competition based on the number of business lines
and fiber-based collocators in that wire center. (Albersheim Dir., pp. 10-12.)
1247 CFR § 51.5 defines a "business line" as follows: "A business line is an incumbent LEC-owned
switched access line used to serve a business custmer, whether by the incumbent LEC itself or by a competitive
LEC that leases the line from the incumbent LEC." (Albersheim Dir., p. 1 I, fÌ. 12)
13 47 CFR § 51. defines a "fiber-based col1ocator" as follows: "A fiber-based collocator is any carier,
unaffliated with the incumbent LEC, that maintans a col1ocation arangement in an incubent LEC wire center,
with active electrical power supply, and operates a fiber-optic cable or comparble trmission facility that
(I) termnates at a col1ocation argement within the wire center; (2) leaves the incumbent LEC wire center
premises; and (3) is owned by a pary other than the incumbent LEC or any afliate of the incumbent LEC, except
as set fort in this paragph." (Albersheim, p. 1 I, fn. 13; Direct Testimony of Rachel Torrence, p. 9.)
10
QWEST CORPORATION'S POST-HEARNG BRIEF
The FCC in its TRRO also required ILECs like Qwest, as part of a transition plan, to fie a
list of "non-impaired" wire centers as of the TRRO's effective date. See TRRO," 142-145, 195-
198. (Albersheim, p. 12; Qwest Ex. I (Februar 4,2005 letter from the FCC to Qwest).) Qwest
thus fied a list of non-impaired wire centers in Februar 2005. (Albersheim Dir., p. 12; see also
Qwest Ex. 2 (current list of Idaho non-impaired wire centers).)
The Act requires ILECs to base the prices for UNs on a forward-looking economic cost
concept known as Total Element Long Run Incremental Costs ("TELRIC"). Put simply, the
price of a UN is based on a forward-looking incremental cost to provide the UN, and not the
actual cost of having constructed the UNE from scratch. These costs are generally established in
cost dockets presided over by state utilties commissions. (Albersheim Dir., pp. 7-8.)
If a UNE is eliminated under the standards of the TRRO, Qwest is no longer obligated to
provide that UN at a TELRIC rate, although Qwest may stil offer an equivalent service at a
market-based price (in other words, not at the forward-looking TELRIC cost). Under these
circumstaces, the CLEC then has the option of purchasing the commercial equivalent for the
UN from Qwest, purchasing the service or facility from another provider, or self-provisioning
the service or facilty itself. (Albersheim Dir., p. 8.)
B. TRRO wire center tier structure
The TRRO created a thee-tier structure to classify wire centers based on their potential to
support competitive trsport and high-capacity loop deployment. The FCC generally described
the likelihood of actual and potential competitive deployment at these tiers of wire centers as
follows: (I) "Tier 1" wire centers are those with the highest likelihood for actual and potential
competitive deployment, including wholesale opportunities; (2) "Tier 2" wire centers also show
a smaller but stil very signifcant likelihood of actual and potential competitive deployment, and
11
QWEST CORPORATION'S POST-HEARNG BRIEF
(3) "Tier 3" wire centers are those that show a generally low likelihood of supporting actual or
potential competitive trnsport deployment. TRRO, at' 111. (Albersheim Dir., p. 14.)
C. TRRO non-impairment thresholds
1. High-capacity interoffce transport
For its specific thesholds in determining what constitutes a "Tier 1" wire centers for
puroses of high-capacity interoffce transport, the FCC defines such Tier 1 wire centers as those
with four or more fiber-based collocators, or with 38,000 or more business lines. TRRO,' 12;
see also 47 CFR § 51.319(e)(3)(i). (Albersheim Dir., p. 14; Direct Testimony of Rachel
Torrence ("Torrence Dir "), pp. 10-11, fis. 2-3.) "Tier 2" wire centers are those with three or
more fiber-based collocators, or with 24,000 or more business lines. TRRO,' 118; see also
47 CFR § 51.319(e)(3)(ii). (Albersheim Dir., p. 15; Torrence Dir., p. 11, fn. 3.) The FCC
considers all wire centers that are not Tier 1 or Tier 2 wire centers as "Tier 3" wire centers.
TRRO, , 123; see also 47 CFR § 51.319(e)(3)(ii). In other words, all wire centers with fewer
than thee fiber-based collocators or with fewer than 24,000 business lines are Tier 3 wire
centers. (Albersheim Dir., p. 15; Torrence Dir., p. 11, fi. 3.) The FCC uses these tiers as
indicators of non-impairment and bases its unbundling requirements for DS 1, DS3 and dark fiber
interoffce trasport on these tiers. (Albersheim Dir., p. 15.)
As for non-impairment for specific levels of high-capacity transport, the FCC determined
there is no impairment for DSI interoffce transport between Tier I wire centers, and thus ILECs
such as Qwest are not obligated to provide unbundled DS 1 interoffce transport on routes
connecting two Tier 1 wire centers. 47 CFR § 51.319(e)(2)(ii)(A). (Albersheim Dir., p. 16.)
Qwests evidence wil show that one Idaho wire center, Boise Main, meets the requirements for
classification as a Tier 1 wire center on the basis of both business line counts and the presence of
fiber-based collocators. (Albersheim Dir., p. 33.) However, since DS1 transport wil be
12
QWEST CORPORATION'S POST -HEARNG BRIF
considered non-impaired only on routes connecting wire centers that are both classified as Tier 1,
DS 1 transport wil remain available to CLECs as a UN in Idaho at this time.
With respect to DS3 interoffce transport the FCC concluded that there is no impairment
for DS3 interoffce transport on routes connecting wire centers where both of the wire centers are
either Tier 1 or Tier 2 wire centers, and thus ILECs such as Qwest are not obligated to provide
unbundled DS3 interoffice transport on routes connecting either Tier 1 or Tier 2 wire centers.
47 CFR § 5L.319(e)(2)(ii)(A). (Albersheim Dir., pp. 11-12.) Because both Boise Main and
Boise West meet the standards for Tier 1 and Tier 2 respectively, DS3 interoffce transport
between these wire centers is non-impaired.
Finally, the FCC concluded that there is no impairment for dak fiber interoffice transport
on routes connecting wire centers where both of the wire centers are either Tier 1 or Tier 2 wire
centers, and thus ILECs such as Qwest are not obligated to provide unbundled dark fiber
interoffce transport on routes connecting either Tier 1 or Tier 2 wire centers. 47 CFR
§ 5L.319(e)(2)(iv)(A). (AlbersheimDir., pp. 16-17.) Again Qwests evidence wil show that
there is non-impairment for dark fiber trasport between the Boise Main and Boise West centers.
2. High-capacity loops
Regarding high-capacity loops, the FCC uses a methodology similar to its treatment of
high-capacity transport, in that it establishes a wire center-by-wire center unbundling
requirement, and thus determines whether a wire center is subject to actual or potential
competition for high-capacity loops, based upon business line counts and fiber-based collocator
counts. (Albersheim Dir., p. 17.) Specifically, the FCC found that there is no impairment within
a service area of a wire center that contains 60,000 or more business lines and four or more
fiber-based collocators, and thus ILECs such as Qwest are not obligated to provide unbundled
DSI loops in these wire centers. 47 CFR § 5L.319(a)(4)(i). (Albersheim Dir., p. 17; Torrence
13
QWEST CORPORATION'S POST -HEARNG BRIEF
Dir., p. 11.) The FCC also determined there is no impairment within a service area of a wire
center that contains 38,000 or more business lines and four or more fiber-based collocators, and
thus ILECs such as Qwest are not obligated to provide unbundled DS3 loops in these wire
centers. 47 CFR § 51.319(a)(5)(i). (Albersheim Dir., p. 18; Torrence Dir., p. 11) Qwests
evidence wil show that the Boise Main wire center is non-impaired with regard to DS3 loops.
(Albersheim Dir., p. 3 i, fn. 20; Qwest Highy-Conf. Ex. 5; Albersheim Reb., pp. 8-9,25-26.)14
D. Non-impairment effect. and no reclassification of impairment
Finally, the result of any non-impairment determination is that associated circuits that
CLECs leased as UNEs wil need to be converted from UNs to alternative Qwest services, to
wholesale services obtained from another carrer, or be self-provisioned by the CLEC.
(Albersheim Dir., p. 19.) The FCC has also specifically determined that wire centers may not be
reclassified back to "impaired" once they have been designated as non-impaired. (See e.g.,
Albersheim Dir., p. 28, fn. 18.) See also 47 CFR §51.319(a)(4)(i) (DSI loops); 47 CFR
§51.319(a)(5)(i) (DS3 loops); see 47 CFR §51.319(e)(3)(i)(dedicated DSI and DS3 transport).
STATEMENT OF PERTINENT FACTS
Qwest follows the TRRO and the FCC rue definitions of "business lines" in its
methodology for counting business lines in a wire center for non-impairment puroses. In
addition, Qwest uses a process for identifying and counting fiber-based collocators at a wire
center that follows the TRRO and the FCC rule definitions of a "fiber-based collocator."
Further stil, these are the same processes that Qwest uses in establishing future non-impaired
wire centers, based on the settlement agreement that it negotiated and agreed to with numerous
CLECs and that five commissions have approved.
14 The FCC also determned there is no impairment for dark fiber loops on a nationwide basis, and thus,
ILECs such as Qwest are no longer obligated to provide unbundled dark fiber loops. 47 CFR § 51.19(a)(6)(i).
(Albersheim Dir., p. 18.)
14
QWEST CORPORATION'S POST -HEARNG BRIEF
I. QWEST'S METHODOLOGY FOR COUNTING BUSINESS LINES
A. TRRO and FCC rule definitions of "business lines"
The FCC defined "business lines" in its TRRO as follows:
The BOC 'Yire center data that we analyze in this Order is based on ARIS 43-08
business lines, plus business UN-P, plus UNE loops. (Albersheim Dir., p. 29 (quoting
TRRO, at' 105).)
Further, the FCC's rules regarding implementation of TRRO requirements (47 CFR
§ 5 I .5) define "business line" as follows:
A business line is an incumbent LEC-owned switched access line used to serve a business
customer, whether by the incumbent LEC itself or by a competitive LEC that leases the
line from the incumbent LEC. The number of business lines in a wire center shall equal
the sum of all incumbent LEC business switched access lines, plus the sum of all UN
loops connected to that wire center, including UNE loops provisioned in combination
with other unbundled elements. Among these requirements, business line talles:
(l) shall include only those access lines connecting end-user customers with
incumbent LEC end-offces for switched services,
(2) shall not include non-switched special access lines,
(3) shall account for ISDN and other digital access lines by counting each 64
kbps-equivalent as one line. For example, a DS 1 line corresponds to 24 64 kbps-
equivalents, and therefore to 24 "business lines." (Albersheim Dir., pp. 29-30;
Rebuttal Testimony ofRenée Albersheim ("Albersheim Reb."), pp. 16-17
(emphasis added).)
Thus, in conformance with the TRRO, and as reflected in the Settlement Agreement that
complies with the TRRO, Qwests business line counts include the following three types of
facilties: (l) Qwest retail business lines, (2) all UN loops, and (3) and the business lines of
Qwest Platform Plus ("QPP"), Qwest Local Services Platform ("QLSP") and other similar
platform product offerings. (Albersheim Dir., pp. 33-34; Albersheim Reb., p. 16.)
The CLECs here do not cite to any objections as to how Qwest counts its own retail
business lines or to its QLSP or other similar platform business lines. (See e.g., Albersheim Dir.,
pp. 33-34 and fus. 23-24, p. 37.) The CLECs' business line objections are limited to issues
15
QWEST CORPORATION'S POST-HEARNG BRIF
regarding Qwests counting ofUN loops and capacity. (See e.g., Intervenor Testimony of
Doug Denney ("Denney"), p. 23 (summarzing the bases ("residential" UN loops and unused
and data capacity) for the CLECs' . objections regarding business line counts).)
B. Owest's application of FCC business line definitions and methodology
1. Inclusion of residential and non-switched UNE loop counts
Consistent with the TRRO, the FCC's Rule 51.5 and the multi-state settlement agreement,
Qwest included all UN loops in a wire center in its business line counts TRRO,' 105. Thus,
consistent with the FCC's "business line" definition, Qwest did not attempt to "remove" UN
loops that may be used to serve "residential" customers or that may be used to provide "non-
switched" services. The language in the TRRO and associated rules specifies there is no
distinction between "business" UN loops and "residential" UN loops, or switched and non-
switched UN loops, and that all UN loops must be included in the business line count for each
wire center. (Albersheim Dir., p. 35; Albersheim Reb., pp. 16-17.)
In paricular, and as noted in the Rule 51.5 definition quoted above, the FCC specifies
that "(IJLEC business switched access lines" must be included in an ILEC's retail line count.
The FCC did not include the adjective "business," or any other qualifier, for UNE loops in its
definition of "business lines," either in the TRRO itself or in Rule 51.5. In other words, the
FCC's rules require that all UNE loops (not only a subset ofUN loops) be included in an
ILEC's business line count in determning whether it has met the FCC's non-impairment criteria.
The FCC's discussion ofUN loops is consistent with its view that the data to be assessed
should be simple and based on readily available data sources. (Albersheim Dir., p. 35.) It is also
consistent with how the vast majority of state commissions and cours have ruled on the issue.
(Albersheim Reb., pp. 12-16, and fn. 18-21.)
16
QWEST CORPORATION'S POST-HEARNG BRIEF
2. 64 kbps VGE adjustments
In addition, in order to satisfy the FCC's directives, Qwest included all 64 kilobit per
second (kbps) voice-grade equivalent ("VGE") chanels in a high-capacity digital line in
counting all digital unbundled loops. Thus, Qwest multiplied all DS 1 unbundled loops in
Qwests December 2007 wholesale database (the same vintage of data upon which Qwests retal
business line count for its ARIS 43-08 report was based) by a VGE factor of24, consistent
with the FCC's guideline in Rule 51.5 that each 64 kbps chanel of capacity in a digita circuit
should be counted as a separate business line (since there are 24 VGE chanels in each high-
capacity DSI circuit (and 672 VGE chanels in a DS3 circuit), and thus "a DSlline corresponds
to 24 64 kbps-equivalents, and therefore to 24 'business lines"'). (Albersheim Dir., p. 36 and fu.
25; Albersheim Reb., pp. 17-20.) See also 47 CFR § 51.5,t
. C. Two Idaho wire centers meet non-impairment based on business lines
Based on Qwests business line data as of December 2007, the Boise Main wire center
meets the FCC's trport threshold for "Tier I" non-impairment having 38,000 or more
business lines, and the Boise West wire center meets the FCC's tranport threshold for "Tier 2"
non-impairment because there are more than 24,000 business lines in that wire center.
(Albersheim Dir., pp. 33, 38; Qwest Highly-Confidential Ex. 5; Albersheim Reb., pp. 36-37.)
Further, because there are more than 38,000 business lines, and at least four fiber-based
collocators, at the Boise Main wire center, that wire center is also non-impaired for DS3 loops.
(Albersheim Dir., p. 31, and fu. 20; Albersheim Reb., pp. 8-9,25-26.)
is Qwest also included enhanced extended loops ("EELs"/in its unbundled loop counts. An EEL
essentially consists of an unbundled loop plus interoffice transport. A CLEC uses an EEL to provide service to a
customer locatd in a paricular wire center when the CLEC's switching equipment is located in a different wire
center. As such, EEL loops ar appropriately included in the count of unbundled loops of the wire center in which
the unbundled loop terminates. (Albersheim Dir., pp. 36-37.) As a general proposition, the CLECs do not dispute
that EELs should be included in its unbundled loop counts, although they raise concern about purchasing EEL
circuits terminating to wire centers serving customers that reside in other wire centers. (See e.g., Denney, p. 35.)
17
QWEST CORPORATION'S POST-HEARNG BRIEF
II. QWEST'S PROCESS FOR IDENTIFYING FIBER-BASED COLLOCATORS
In addition, Qwest follows the TRRO and Rule 51.5 in identifYing those collocators in
Qwests wire centers that meet the FCC's definition ofa "fiber-based collocator" for purposes of
non-impairment. As Qwest wil show, Qwests process of identifYing and counting such fiber-
based collocators is sound and reasonable.
A. TRRQ and FCC rule definitions of fiber-based collocators
The TRRO defines a "fiber-based collocator" as any carer, unaffliated with the ILEC,
that maintains a collocation arangement in an ILEC wire center, with active electrical power
supply, and operates a fiber-optic cable or comparable transmission facilty that (l) terminates at
a collocation arangement within the wire center; (2) leaves the ILEC wire center premises; and
(3) is owned by a pary other than the ILEC or an ILEC affliate. See TRRO, , 102.16 Two or
more affliated fiber-based collocators in a single wire center are collectively counted as a single
fiber-based collocator. (Torrence Dir., p. 12; see also 47 CFR § 51.5. Fixed-wireless collocation
argements are included "if the carer's alternative trasmission facilties both terminate in
and leave the wire center." TRRO,' 102. Finally, a competitor's collocation arrangement
counts toward the qualification of a wire center for a paricular Tier irrespective of the services
that the competing carer offers. Id. (Torrence Dir., p. 13.)
B. Owest's processes to identify fiber-based collocators
When Qwest undertook its initial efforts to identifY its non-impaired wire centers in 2005,
it developed a methodology that would accurately identifY the number of fiber-based collocators
in its wire centers. Qwest staed with the criteria set fort in the TRRO (' 102) for determining a
16 Darkfiber obtained from an ILEC on an indefeasible right of use ("IRU") basis is treated as non-ILEC
fiber-optic cable. TRRO, ii 102, fn. 292. (Torrence Dir., p. 12.)
18
QWEST CORPORATION'S POST-HEARNG BRIEF
fiber-based collocator and adopted the TRRO's definition for fiber-based collocators verbatim.17
Thus, Qwest undertook efforts to identitY the number of fiber-based collocators within its wire
centers not only in Idao, but in all of its other ILEC states. (Torrence Dir., pp. 14-15,24.)
First, Qwest used an internal database that tracks all CLEC-submitted and approved
collocation requests to develop a preliminar list of fiber-based collocations. Qwest then
extracted all collocations that did not indicate there were fiber entrance facilities. The resulting
list was verified for an active power supply to those collocations. Qwest then checked biling
data to confirm that the carer was being biled for collocation. Qwest then conducted an on-site
physical field validation. (Torrence Dir., p. 17)18 Qwest also checked to make sure that multiple
collocations by affliated carers were counted as only one fiber-based collocator. (Id.)
Finally, Qwest sent a letter on June 4,2008 to each CLEC advising them of the wire
centers in which Qwest wil show that CLEC to have a fiber-based collocation. In its letter,
Qwest requested that each CLEC verify its records to ensure it agreed with Qwests records, and
if it found any discrepancies, it could provide documentation regarding the collocation in
question to Qwest. (Torrence Dir., p. 18; see Qwest Ex. 7 (sample June 4,2008 letter).)
17 The TRRO also set criteria regarding dak fiber users and fixed-wireless providers as fiber-based
collocators. However, Qwest did not address them in its criteria becaus Qwest took a very conservative approach
for the sake of increasd accurcy, and thus it focused its atention on the majority of quaifying collocators, which
were fiber-basd collocators. Qualifyng fixed wireless and dark fiber users operating with an indefeasible right of
use ("IRU") constitute a very small percentage of the tota numbers of collocators, and thus identifyng and
verifyng these tys ofcollocators would have required an extensive research effort This time consuming effort
was not practicaL, and thus Qwest deemed it more prudent to concentrate on compilng an accurate list of the tyes
of fiber-based collocators that constitute the vast majority of fiber-basd collocators within Qwest s wire centers.
Research conducted since then shows that fixed-wireless and dar fiber obtaned under an IRU have not had any
impact regarding the non-impairent status of any Idaho wire centers. (Torrence Dir., pp. 15- 1 6.)
18 In its on-site field verifications, Qwest used a spreadsheet in order to facilitate the documentaon of the
certain TRRO collocation elements, such as verification of operator/carer name, verification of active power and
verification of fiber facilties. Qwest took it upon itself to valida additional elements beyond that required in the
TRRO to fuer insure that its list of fiber-based collocators was as accurate as possible. Finally, Idao centrl
offce personnel physically inspected the two wire centers to verify the information that Qwest already had add any
additional fiber-based collocations that met the FCC's criteria, investigate disputes of any data that any CLECs had
provided in their responses to Qwest and provide any pertinent anecdotal information or comments regarding any of
the collocations. (Torrence Dir., pp. 21-23; Highly-Confidential Ex. 9 (field verification worksheets).)
19
QWEST CORPORATION'S POST-HEARNG BRIEF
Unfortately, however, only one of the six fiber-based collocators that Qwest identified as
operating fiber-based collocations in the Boise Main and Boise west wire centers responded to
Qwests June 4,2008 letter. That lone responding CLEC confrmed it was a fiber-based
collocator. (Torrence Dir., p. 21; Highly-Confidential Ex. 8 (table ilustrating responses).)
Unfortnately, Qwest can only ask for the CLECs' cooperation in determining the number of
fiber-based collocators. Many CLECs appear to be reluctant to respond and thus Qwest is forced
to rely on evidence that it can gather independently. (Torrence Dir., p. 18.)
This is the same process that Qwest has used since 2006, and is the same process that is
included in the settlement agreement (Section V.B.), which Qwest followed for the Boise Main
and Boise West wire centers. (Torrence Dir., p. 21.) The end result was that Qwest identified
three fiber-based collocators in the Boise West wire center and five fiber-based collocators in the
Boise Main wire center. (Id., p.24; Qwest Highly-Confidential 10 (list of fiber-based
collocators).) The CLECs have admitted that both of these wire centers have the minimum
number of fiber-based collocators, and thus are non-impaired at the Tier i level (Boise Main)
and the Tier 2 level (Boise West) (with the only remaining non-impairment designation in
dispute being DS3 loop non-impairment at the Boise Main wire center). (Denney, pp. 7, 42.)
C. Two Idaho wire centers meet non-impairment based on collocators
Accordingly, based on numbers of fiber-based collocators at both the Boise Main and the
Boise West wire centers, the Boise Main wire center meets the FCC's transport threshold for
"Tier i" non-impairment, and the Boise West wire center meets the FCC's trsport threshold
for "Tier 2" non-impairment. (Torrence Dir., pp. 24-25; Qwest Highly-Confidential Exs. 8-10;
Albersheim Reb., pp. 36-37; Denney, pp. 7, 42.) Finally, because in addition to the five fiber-
based collocators at the Boise Main wire center, there are also more than 38,000 business lines,
20
QWEST CORPORATION'S POST -HEARNG BRIEF
that wire center is also non-impaired for DS3 loops. (Albersheim Dir., p. 31, and fn. 20;
Albersheim Reb., pp. 8-9,25-26,36-37.)
III. QWEST'S PROCEDURES FOR FUTUR NON-IMPAID WIRE CENTERS
A. Need for procedures for establishing future non-impaired wire centers
Finally, Qwest expects to update its Idaho list of non-impaired wire centers to the extent
that additional wire centers meet the FCC criteria in the future. As noted above, the FCC
determined that the rules in the TRRO are self-effectuating, and that "our unbundling rules are
designed to remove unbundling obligations over time." TRRO,' 3. Thus, going forward, if
updates to the list of non-impaired wire centers are required, Qwest intends to update the list of
non-impaired wire centers using the same counting methodologies that Qwest has described in
detail in this proceeding and that Qwest and numerous CLECs agreed in the multi-state
settlement agreement that Qwest has proposed for adoption here in Idaho. (See e.g., Albersheim
Dir., pp. 21-23; Albersheim Reb., pp. 9-10.)
B. The Multi-State Settlement Agreement
Under the multi-state settlement agreement ("Settlement Agreement"), Qwest is allowed
to update its list of non-impaired wire centers as often as necessar. However, wire center
updates based on business lines wil only be possible once a year since the data upon which
business line counts are based (the FCC's Automated Reporting Management Information
System ("ARMIS") data) is prepared and submitted to the FCC once a year. Wire center updates
based on the number of fiber-based collocators at a wire center are not limited in this maner,
and thus at any point in time, a new fiber-based collocation could be installed in a wire center,
thus changing the status of that wire center from impaired to non-impaired (or from Tier 2 to
Tier i). (Albersheim Dir., p. 20; see also TRRO, fn. 519.)
21
QWEST CORPORATION'S POST-HEARNG BRIF
As Qwest has explained, Qwest and various CLECs who were involved in the TRRO
proceedings in certin other states reached the Settlement Agreement that established the initial
wire center lists in those states, and pertinent to this docket, established an agreed-upon process
for updating the lists going forward. This agreement was approved in five of the six states
included within the agreement, and has been used to update the non-impaired wire center lists in
those states since its approvaL. (Albersheim Dir., p. 21; Qwest Ex. 4; Albersheim Reb., pp. 3-4,
fn. 3, and pp. 9_10.)19
Section V of the Settlement Agreement outlines the methodology that the paries have
agreed to use for the purposes of counting business lines and fiber-based collocators. The pares
have agreed that this methodology complies with the rules established by the FCC in the TRRO.
(Albersheim Dir., p. 24; Qwest Ex. 4, § V; Albersheim Reb., pp. 5-6.) The agreement also
allows CLECs the opportunity to dispute changes that Qwest makes to its non-impaired wire
center list with an expedited process. (Albersheim Dir., pp. 24-25; Qwest Ex. 4, § V.F.)
Further, Section VI sets fort the process for Qwests filing of non-impaired wire centers
and additions to its non-impaired wire center list in the future. (Albersheim Dir., p. 25; Qwest
Ex. 4, § VI.20 The CLECs in the varous earlier states, including Integra, agreed to this process
going forward. (Albersheim Dir., p. 25; Albersheim Reb., pp. 9-10.)
19 The CLECs included Integra (an Intervenor in this cas), Covad, Eschelon, McLeodUSA, Onvoy, POPP,
TDSM and XO. (Albersheim Dir., p. 21, fn. 15.)
The Settlement Agreement was approved in Ariona, Minnesota Oregon, Utah and Washington. The
Agreement was not approved in Colorado and the cae is stil pending. (Albersheim Dir., p. 22, fn. 16; Albersheim
Reb., pp. 3-4, fn. 3.)
20 The Settement Agrement includes the following provisions for futue filings:
(1) Qwest may request additions of non-impaied wire centers at any time basd solely on the number of
fiber-based collocators;
(2) Qwest may request additions based on line counts until July 1 st of each year, based on prior year data;
(3) at least five days prior to a filing, Qwest will request a protective order for confdential information (the
Settlement Agreement includes a model protective order);
(4) Qwest will provide notice to all impacted CLECs at least five days pnor to fiing;
22
QWESTCORPORATION'S POST-HEARNG BRIEF
Finally, as stated, the FCC has specifically determined that wire centers may not be
reclassified back to "impaired" once they have been designated as non-impaired. See 47 CFR
§51.319(a)(4)(i)(DSl loops); 47 CFR §51.319(a)(5)(i)(DS3 loops); see 47 CFR §51.319(e)(3)(i)
(dedicated DSI and DS3 trnsport).21 Thus, it would be inappropriate to include any provision
about reclassification as par of any future non-impairment inquiry. (Albersheim Dir., p. 28.)
IV. QWEST'S NONRECURRG CHARGE FOR CONVERSIONS OF UNEs TO
ALTERNATIVE QWEST SERVICES
Qwest also seeks to assess nonrecurrng charges ("NRCs") when converting a UN to an
alternative Qwest circuit, such as a private line or special access circuit. (Direct Testimony of
Victoria Hunnicutt ("Hunnicutt Dir."), pp. 3, 4.) Qwest wil use an NRC to recover the costs that
it incurs when implementing these conversions. (Id.)
A. Work activities involved in convertng a UNE to an alternative service
Qwest wil demonstrate that the conversion of a UN circuit to a special private line
circuit involves thee functional areas within Qwests ordering and provisioning organizations.
The personnel within these thee functional areas involved with a conversion are the (1) Service
(5) Qwest will fie supporting data outlned in detal in the Settlement Agreement sufficient to support the
counts of fiber-based collocators and/or line counts;
(6) once a filing has been made, paries wil have 30 days to raise objections with the state commission to
Qwests request;
(7) if there are no objections filed, the effective date for non-impairment wil be 30 days after the filing
date, unless a state commission orders otherwise, and the pares wil jointly request an expedited non-impairent
designation from the state commission;
(8) the CLECs agree that they wil not order non-impaired facilties in the wire centers on the non-impaied
list as of 15 days from the effective date ofthe non-impaient designation;
(9) if any pary disputes Qwest's proposed non-impairment designations, the paries have agreed to ask the
state commission to use its best efforts to resolve the dispute within 60 days of the date of the objecton; and
(10) if there are no objectons fied with the stte commission, the paries have agreed that they wil jointly
request an expedited order approving the undisputed designations. (Albersheim Dir., pp. 25-26; Qwest Ex. 4, § VI.)
The Settlement Agreement also has a provision that estblishes procedures for tranitioning high-capacity
UNs (90 days for high-capacity loops and tranport and 180 days for dark fiber) when additional wire centers are
found to be non-impaied. (Albersheim Dir., p. 27; Qwest Ex. 4, § VI.)
21 See also TRRO, p. 94, fu. 466 (regarding DSI and DS3 loops).
23
QWEST CORPORATION'S POST-HEARNG BRIEF
Delivery Coordinator (SDC), (2) Designer, and (3) Service Delivery Implementor. Qwest wil
show that there are a varety of steps that it must undertke to assure itself that the data for the
converted circuit is accurately recorded in the appropriate systems within each of these three job
functions. (Hunnicutt Dir., pp. 13-15. i2 In addition, Qwest wil show why the circuit identifier
("Circuit il") must be changed. The Circuit il must be changed for several reasons, including
the factthat FCC rules (47 C.F.R. §32.12(b) and (c)) require that telephone carers accurately
maintain records that track inventories of circuits,23 and that the unique Circuit il is maintained
as a means of measuring the different service performance requirements applying to UNs and
private line services. (Id., p. 16; Albersheim Reb., pp. 27-33.)
Finally, the process for converting a UN circuit to a private line circuit is transparent
and seamless to a CLEC's end-user customer, and this process is used to avoid placing the end-
user customer's service at risk. (Hunnicutt Dir., p. 17.) Qwest inteijects a number of manual
activities into the process so that certin automated steps do not occur that could otherwise result
in disruption of services. Thus far, Qwest has conducted more than 1,500 conversions and there
have been no complaints from CLECs about customers whose service has been disrupted as a
result of this conversion process. (Id., p. 18.)
22 Qwest wil not go into all ofthe detaled work it must perform when a CLEC requests a conversion to an
alternatve circuit. However, at a miimum the SDC, who is the primar contat for the CLEC, provides the CLEC
end-to-end order coordination from request to order completion must review, and must confrm the data in the
Access Service Request (ASR) and assure that the dat is accurately tranferred into two service orders required to
change biling frm the CRIS biling system to the lABS biling system. The SDC must also change the circuit
identifier ("Circuit ID") to reflect the fact that the circuit wil now be recognized as a private line rather than a UN
circuit once the order is complete, and must check the acuracy of other data (Hunicutt Dir., pp. 13-15.)
In addition, the Designer reviews and validates the circuit design and assures that the design records for the
converted circuit match the curent UNE circuit, as well as that no physical changes to the circuit are needed. The
Designer also reviews the circuit inventory in the TIRKS datbas to ensure accurcy and databas integrity in order
to ensur there is no service interrption for the CLEC's end-user cusomer. (Hunicutt Dir., p. 15.)
Finally, the Service Delivery Implementer has overall control for order provisioning, and verifies the orders
and completes the update of the circuit orders in the appropriate system. (Huncutt Dir., p. 15.)
23 This rule requires Qwest to maintain subsidiar records in suffcient detal to align spcific circuits with
the biling, accounting, and jursdictional reporting requirements related to the services that these circuits support.
(Hunnicutt Dir., pp. 8-9.)
24
QWEST CORPORATION'S POST -HEARNG BRIEF
B. Owest's Design Change Charge
For its conversion charge, Qwest proposes using its tarffed Design Change Charge,
which is reflected in the Settlement Agreement and thus was agreed to by numerous CLECs and
approved by five state commissions. The Design Change Charge involves functional areas and
work taks that are similar to those associated with the conversion of a UN to a private line
service or facilty. In addition, it provides a conservative estimate of the costs Qwest wil incur
when converting CLEC high-capacity loop and transport UNEs to their private line counterpars.
Similar activities tae place when Qwest processes the orders for the conversion of a UN to a
private line circuit. Due to the systems involved in the separate trcking of UN and private line
services, as well as the additional manual effort that Qwest undertakes to ensure there are no
service disruptions for CLEC customers, the UN-to-private line conversion orders are typically
more costly to process than a typical Design Change. (Hunnicutt Dir., pp. 13-15, 17-18.)
Finally, the use ofthe Design Change Charge gives CLECs the benefit of a very
conservative charge when compared with the actual activities that Qwest undertes during ths
conversion process. (Hunnicutt Dir., p. 10.) This is the NRC to which Qwest and the Joint
CLECs agreed in the multi-state Settlement Agreement, and is a charge that eight CLECs in
Idaho have adopted in their interconnection agreements. (Id., pp. 9- i 0; Hunncutt Reb., p. 1 i.)
ARGUMENT
I. QWEST'S BUSINESS LINE COUNTS MEET THE TRRO THRESHOLDS, AND
THUS BOTH BOISE MAIN AND BOISE WEST AR NON-IMPAIRED
The intervening CLECs concede that both the Boise Main and the Boise West wire
centers meet the non-impairment stadard for transport and dak fiber based on the number of
fiber-based collocators in those wire centers. (Denney, pp. 7, 42.) However, these CLECs
dispute that the Boise West and Boise Main wire centers are non-impaired based on the
25
QWEST CORPORATION'S POST -HEARNG BRIEF
alternative standard of the number of business lines in these wire centers. Although fiber-based
collocator counts in these two wire centers alone are suffcient to establish non-impairment for
transport and dark fiber regardless of the business line counts, the number of business lines is
importt here because it affects whether the Boise Main wire center is also non-impaired for
DS3 loops. DS3 loop non-impairment must be established by showing both 38,000 lines and at
least four fiber-based collocators are present in the subject wire center.
In their opposition to DS3 loop non-impairment of the Boise Main wire center, the
CLECs argue that Qwest makes two related errors that lead it to overstate business line counts.
They also claim they were unable to "validate" Qwests Integra-specific UNE loop counts, and
they argue that Qwest should have used December 2008 (instead of December 2007) line counts
to support non-impairment status for DS3 loops at the Boise Main wire center. Regarding these
alleged errors, they claim that Qwest has inappropriately counted UNE loops that may serve
"residential" customers (and not business customers) and that Qwest counts "unutilzed
capacity" and "capacity to provide data services" in its UN loop counts, and used the wrong
vintage of data for DS3 loops. (See e.g., Denney, pp. 23, 25-33.)
For the reasons set forth below, Qwest business line counts, as described in Section V.A.
of the Settlement Agreement, comply with the TRRO. As such, the Commission should (1) find
that such methodology meets the TRRO's requirements, (2) adopt the methodology in Section
V.A. of the Settlement Agreement, (3) find that the Boise Main wire center has more than 38,000
"business lines" as the FCC has defined that term in its TRRO and in its associated rule, 47 CFR
§ 51.5, and thus meets the TRRO's Tier 1 non-impairment threshold for DS3 tranport and dark
fiber, and the TRRO non-impairment threshold for DS3 loops, and (4) find that the Boise West
wire center has more than 24,000 business lines as so defined, and thus meets the TRRO's Tier 2
non-impairment threshold. (Albersheim Dir., pp. 31,:t. 20, 33, 38; Qwest Highly-Conf. Ex. 5.)
26
QWEST CORPORATION'S POST-HEARNG BRIEF
A. Owest correctly counts TRRO business lines
In the testimony of their witness, Douglas Denney, the CLECs argue that Qwest should
not count all UN loops because they could include "residential" lines and not business lines
(Denney. pp. 23, 25-26), and that Qwest should not include "spare capacity" and non-switched
lines in its business line counts (i.e., that Qwest should not count each 64 kilobit (64 kbps)
chanel for its high-capacity (DSl) loops) (Denney, pp. 23, 26_33).24 However, Qwest wil
show that it correctly counts "business lines" as the TRRO has defined them.
1. Business lines include all UNE loops
The FCC's directives are very clear: all ILEC lines that are used to serve business
customers, whether they are provided on a retal or a wholesale basis, should be included in the
business line count. (Albersheim Dir., pp. 33-36; Albersheim Reb., pp. 16-17.) Wholesale lines,
of coure, are those that are sold to other telecommunications carers such as the intervening
CLECs in this docket. Indeed, paragraph 105 of the TRRO bases its definition of "business
lines" "on ARIS 43-08 business lines, plus business UN-P, plus UNE loops." (See
Albersheim Dir., p. 35.) Further, Rule 51.5 states that "(t)he number of business lines in a wire
center shall equal the sum of all incumbent LEC business switched access lines, plus the sum of
all UNE loops connected to that wire center, including UNE loops provisioned in combination
with other unbundled network elements." (Id., p. 35; Albersheim Reb., p. 16 (emphasis added).)
The FCC's business line definition also recognizes that UN loops are generic wholesale
services and thus that an ILEC has no meas of determining whether a CLEC is using a UN
24 The CLECs do not appear to dispute Qwest's counting of its own retail business lines. (See e.g.,
Denney, p. 23 (sumaring the CLECs' objections to Qwest's business line counts).) As Qwest mentioned, it
counts its own retal business lines using its most recently-fied unadjusted dat that it files with the FCC every April
regarding the previous year's data Thus, in this case, Qwest used the data that it recorded and counted at each wire
center as of December 2007 and that it fied with the FCC in its ARMS 43-08 report in April 2008. (Albersheim
Dir., p. 34.) The CLECs also do not appear to object to Qwest's counting of QSLP or other "platform" service lines.
(See e.g., Denney, p. 23; see Albersheim Dir., p. 37.)
27
QWEST CORPORATION'S POST-HEARNG BRIEF
loop to serve a residential customer or a business customer. In fact, the FCC's rules (47 CFR
§ 51.5) clearly state that the sum of all UNE loops should be included in an ILEC's count of
business lines. (Albersheim Dir., pp. 35-36; Albersheim Reb., pp. 16-17.) Thus, despite the
CLECs reading of one sentence in isolation, Qwest reads the rule in its entirety. This is also the
methodology set fort in the Settlement Agreement, which one of the CLECs (Integra) agreed to,
and which is consistent with the FCC's guidelines established in the TRRO. (Albersheim Dir.,
pp. 33-34; Albersheim Reb., pp. 5-6.)
Finally, the CLECs have gone to great lengths to surmise or speculate about what they
believe the FCC "intended" by this rule, or is "logical" or "consistent" with the FCC rules, or is a
"proper reading" of the FCC's rules. (See e.g., Denney, pp. 26, 30-31.) However, ultimately
such speculation is irrelevant - the rule says what it says. Nor surprisingly, the only state
commission or court order that the CLECs cite in support of their position is a Colorado
Commission decision that found that residential and non-switched lines should be excluded from
the count ofUN loops and Qwests business line calculation. (Denney, pp. 11, 12-13, 16.)
However, as Qwest wil show, that Colorado decision is an outlier decision that is
presently on appeal and that relied heavily on another order (from Michigan) that had already
been overturned by a federal distrct court. (Albersheim Reb., pp. 10-12.) In contrast, Qwest
wil show that, in addition to the five Qwest state commissions that have approved the settlement
agreement, there have been 15 separate decisions (two by courts and 13 by state commissions)
that have ruled that business lines should be counted in a maner consistent with the
methodology advocated by Qwest in this docket. (Albersheim Reb., pp. 10-13.i5
25 See (1) Texas- See Logix Communications, L.P., v. The Public Utility Commission of Texas, et. al.,
Docket No. 06-51697 (5thCir. 2008), slip op. P 7-8; (2) Michigan- Michigan Bell Telephone Company, d/b/a AT&T
Michigan v. Michigan Public Service Commission, et aI., Case number 06-11982, 2007 U.S. Dist. LEXIS 71272 (E.
D. Mi. 2007), p. 28; (3) Missouri- Report and Order, In the Matter of the Application ofNuVox Communications of
Missouri, Inc.for an Investigation into the Wire Centers that AT&T Missouri Asserts are Non-Impaired under the
28
QWEST CORPORATION'S POST-HEARNG BRIEF
Qwest believes the Commission should review those cour decisions and state
commission orders to see how these courts and commissions have correctly ruled on these issues.
These decisions and orders wil also demonstrate how flawed the CLECs' arguments, and the
order they use to bolster their arguments, really are. Thus, although Qwest wil not discuss all 15
court and commission decisions and orders that it cites, it is instrctive to review even just a
couple of these decisions.
For example, in Qwests region, the Utah Commission stated as follows:
In deciding this matter, we look first to the TRRO and then attempt to read the FCC's
rules consistently with the FCC's guidance in the TRRO. All paries agree the basic
intent of paragrph 105 of the TRRO is to provide an easily understood process for
calculating business lines based on readily available information. We concur and
TRRO, Case No. TO-2006-0360 (Mo. P.S.C., March 31, 2008), pp. 5-6; (4) Indiana- Final Order, Petition of
Indiana Bell Telephone Compari, Incorporated for Expedited Resolution of Dispute with Nuvox Communications
Inc. Regarding Non-Impaired Wire Centers, Docket No. 42986 (Ind. U.R.C., August 15, 2007), pp. 48-55;
(5) Order, In the Matter of the Indiana Utilty Regulatory Commission's Investigation of Issues Related to the
Implementation of the Federal Communications Commission's Triennial Review Remand Order and the Remaining
Portions of the Triennial Review Order, Cause No. 42857 (Ind. U.R.C, Januar 11, 2006); (6) Ohio- Finding and
Order, In the Matter of the Petition of XO Communications, Inc. Requesting a Commission Investigation of Those
Wire Centers that AT&T Ohiò Asserts are Nonimpaired, Docket No. 05-1393- TP-UNC (P.U.C Oh. June 6, 2006);
(7) Arbitration Award, In re Establishment of Terms and Conditions of an Interconnection Agreement Amendment,
PUCO, Case No. 05-887-TP-UNC (P.U.C. Oh. Nov. 9,2005), at 16; (8) Kansas- Order Determinig Proper Method
for Fiber-Based Collocator and Business Line Counts, In the Matter of Post-Interconnection Dispute Resolution of
Southwestern Bell Telephone LP Against Nuvox Communications of Kansas, Inc. Regarding Wire Center UNE
Declassifcations, Docket No. 06-SWBT-743-COM (Kansas Corp. Com., June 2, 2006); (9) Texas- Order
Approving Methodology to Determne AT&T Texa Wire Centers which are Non- Impaired, Post-Interconnection
Dispute Resolution Proceeding Regarding Wire Center UNE Declassifcation, PUC Docket No. 31303 (Tex. P. U.C.,
April 7, 2006), pp. 30 and 32-33; (10) South Carolina- Order Addressing Changes of Law, In Re: Petition of
BellSouth telecommunications, Inc. to Establish Generic Docket to Consider Amendments to Interconnection
Agreements Resultingfrom Changes of Law, Docket No. 2004-316C, Order No. 2006-136 (SC P.S.C., March 10,
2006), at p. 44; (11) Florida- Order No. PSC-06-0 172-FOF-TP, Petition to Establish Generic Docket to Consider
Amendments to Interconnection Agreements Resultingfrom Changes in Law by BellSouth Telecommunications, Inc.,
Fla PUC, Docket No. 041269-TP (Fl P.S.C., March 2,2006), p. 37; (12) Georgia- Order on Remaining Issues,
Generic Proceeding to Examine Issues Related to BellSouth Telecommunications, Inc's. Obligations to Provide
Unbundled Network Elements, Docket No. 19341-U (Ga. P.S.C., Februar 7, 2006), pp. 19-20; (13) California-
Decision Adopting Amendment to Existing Interconnection Agrement, Application of Pacifc Bell Telephone
Company, d/b/a SBC California for Generic Proceeding to Implement Changes in Federal Unbundling Rules Under
Sections 251 and 252 of the Telecommunications Act of 1996, Application 05-07-024, Decision 06-01-143 (P.U.C.
Cal., Januar 26, 2006), pp. 10-11; (14) Illnois- Arbitrtion Decision, Petition for Arbitration Pursuant to Section
252(b) of the Telecommunications Act of 1996 with Ilinois Bell Telephone Company to Amend Existing
Interconnection Agreements to Incorporate the Triennial Review Order and the Triennial Review Remand Order,
Docket No. 05-0442 (Il. Commerce Com., Nov. 2, 2005), p. 32; (15) Mississippi- Final Order, In Re: Order
Establishing Generic Docket To Consider Change-Ol-La To Existing Interconnection Agreements, Docket No.
2005-AD-139, 2006 Miss. PUC LEXIS 680 (October 20,2006), pp. 76-69. (Albersheim Reb., p. 13, fn. 18.) See
also footnote 40 for the five Qwest state commission orders approving the settlement ageement.
29
QWEST CORPORATION'S POST-HEARNG BRIEF
conclude the Division's (Staff s) proposed method of determining the number of business
lines at a given wire center best satisfies the FCC's intent by providing an easily
calculated, reasonable representation of competition within that wire center. Using
ARIS 43-08 data, including Qwests known retail DSI and DS3 line counts, as a
staing point for business line calculations provides "an objective set of data that
incumbent LECs already have created." Likewise, adjusting wholesale DS I and DS3
numbers to account for their total VGE capacity and counting all UNE loops accords with
the FCC's view that the number of business lines fairly represents the business
opportnities available in a given wire center. (Emphasis added. i6
Other cours and commissions and outside ofQwests region have concluded similarly.
For example, in Michigan Bell Tel. Co., Inc. v. Lark, et al., 2007 U.S. Dist. LEXIS 33682 (E. D.
Mich., May 8, 2007), in reversing the Michigan Commission's order (the order that the Colorado
Commission relied on), the Fifth Circuit stated as follows:
The MPSC's position confuses the definition of a business line with the procedure
used for counting a business line as specified in the governing regulation. "A business
line is an incumbent LEC-owned switched access line used to serve a business customer."
See 47 C.F.R. 51.5. Based upon this definition, the MPSC concluded that the phrase "all
UN loops connected to that wire center" included only those UN loops that can be
shown to serve business clients." (Citation omitted.)
This interpretation ignores the plain language of the regulation. If the FCC
wanted to include only business switched-access lines, it would have said so. The Cour
declines to trasform the unambiguous phrase "all UN loops" to mean only some UN
loops. Further support for the reading of the regulation advanced by AT&T can be
gleaned from the FCC's rejection of an approach requiring "detaled and potentially
subjective building-by-building and loop-by-loop evaluations" as impracticaL. TRRO at
~ 159. The FCC instead based its business line count on data established by objective
ILEC filings, concluding that "by basing our definition (of business line counts) on an
ARIS filing required of incumbent LECs and adding UNE figures, which must also be
reported, we can be confident in the accuracy of the thesholds, and a simplified abilty to
obtain the necessary information. Id. at ~ 105. In contrast, the MPSC's approach
requires the loop-by-Ioop analysis that the FCC explicitly rejected because the
information is neither readily available or verifiable. The fact that AT&T, unlike many
other ILECs, has that information, does not alter the approach ariculated in the TRO
and regulation. Finally, the interpretation adopted by the MPSC has been rejected by the
state commissions of Alabama, California, Florida, Georgia, Ilinois, Indiana, Kansas,
Ohio, South Carolina, Utah, Texas and Washington D.C. (Citation omitted) 2007 U.S.
Dist. LEXIS 33682, at p. 5. (Emphasis added.)
26 See In the Matter into the Investigation into Qwest Wire Center Data, Report and Order, Uta PSC,
Docket 06-049-40 (September i i, 2006) ("Utah Initial Order"), at pp. 20-21.
30
QWEST CORPORATION'S POST-HEARNG BRIEF
Likewise, the Missouri Commission noted:
Between the two arguments presented on this issue, the Commission is most persuaded
by that of Staff and AT&T. In both the definition of "business line" and in the FCC's
TRRO, the phrase "UN-Ioop" is not modifed by the word "business." This is tre,
despite that "switched access lines", in the definition, is modified by the word "business",
as is "UN-P, in the TRRO paragraph. It is therefore the FCC's intent that UNE-loops
serving both business and residential customers be included when counting "business
lines." Also weighing in AT&T's favor is the FCC's intent that the information on
business lines be objective and readily available. AT&T knows the capacity of the lines
sold to CLECs. If it is something other than voice grade, then AT&T might assume the
line is serving a business.(fn However, as discussed during the hearng, a voice grade
line might also serve a business. It follows that the distinction between a business loop
and one that serves a residential customer wil blur at times. As pointed out by AT&T, it
was the FCC's intention that an approach be adopted that "relies on objective criteria to
which the incumbent LECs have full access, is readily available by competitors. . . ."(fu)
Further, the FCC discourages the "loop-by-loop" evaluations that would be necessary to
determine whether a loop serves a business or residential customer. (Emphasis added.i7
Finally, the Kansas Commission ruled:
55. The Commission concludes that there is no conflct between the first and
second sentences of the "business line" definition. The FCC defined the term in the first
sentence and then, in the second sentence, provided the means by which business lines
would be counted in an incumbent LEC's wire center. The FCC determined that the sum
of incumbent LEC's business switched access lines and UN loops was appropriate
because this set of data was objective and already in existence for other regulatory
reuirements. (fn The FCC adopted the most objective criteria possible in order to
avoid complex and lengthy proceedings that are administratively wasteful and add only
marginal value to the unbundling analysis. (fn
(56.) Thus the Commission concludes that NuVox's attempt to link the phrase "among
these requirements" to the first sentence of the rule (fn/) is wrong. NuVox's
interpretation would limit the business line count to only SWBT -owned switched access
lines used to serve business customers, whether by SWBT itself or by a CLEC that leases
lines from SWBT. This limitation is clearly not the intention of the FCC because an
inquiry would be required as to which CLEC-leased lines were used for business
customers and which lines were leased for switched access or data purposes. This
information is held only by the CLECs in Kansas (fn/ and clearly is not the "objective
set of data that incumbent LECs already have created for other regulatory puroses"
envisioned by the FCC. (fn As the FCC observed, relative to fiber-based collocation
data: "Moreover, unlike information regarding fiber-based collocation, the information
27 Report and Order, In the Matter of the Application of Nu Vox Communications of Missouri, Inc. for an
Investigation into the Wire Centers that AT&T Missouri Asserts are Non-Impaired under the TRRO, Case No. TO-
2006-0360 (Mo. P.S.C., March 31, 2008) ("Missouri Order"), at p. 5.
31
QWEST CORPORATION'S POST-HEARNG BRIF
necessar to implement the previous self-employment triggers was possessed entirely by
a span of competitive LECs and was not easily verifiable." (fn/) That observation is
equally germane to the business line count in a SWBT wire center. Depending upon data
that is not objective criteria to which SWBT does not have full access, that is not readily
confirmable by competitors and that does not make appropriate inferences regarding
potential deployment does not comply with FCC intentions in the analysis of unbundled
transport impairment. (Emphasis added. i8
As Qwest wil show, the vast majority of jurisdictions that have addressed this issue have
agreed with Qwest's (and the Settlement Agreement's) position on these issues. (Albersheim
Reb., pp. 13-16, and fn. 18-22.) Accordingly, Qwest has correctly counted all UN loops in its
business line counts, and thus wil clearly show that both wire centers easily meet the TRRO's
non-impairment thresholds based on the number of business lines there. The Commission should
reject the CLECs' arguments on this issue.
2. Owest correctly counts all 64 kbps voice-grade eauivalents29
Further, subsection (3) of the "business line" definition of 47 CFR § 51.5 clearly states
that each 64 kilobit (64 kbps) channel within a high-capacity digital line, such as a DS 1, should
be counted as a separte business line. Specifically, subsection 3 of the FCC's rule is very clear
that business line talles:
(3) Shall account for ISDN and other digital access lines by counting each 64 kbps-
equivalent as one line. For example, a DSlline corresponds to 24 64 kbps-equivalents,
and therefore to 24 "business lines." (Emphasis added.)
Since a DS 1 line, for example, has a capacity of 1,544 kbps, a DS i would be counted as 24
separate business lines. (Albersheim Dir., pp. 30, 36, and fu. 25; Albersheim Reb., pp. 17-20.)
28 Order Determining Proper Method for Fiber-Based Collocator and Business Line Counts, In the Matter
of Post-Interconnection Dispute Resolution of Southwestern Bell Telephone LP Against Nuvox Communications of
Kansas, Inc. Regarding Wire Center UNE Dec/assifcations, Docket No. 06-SWBT-743-COM (Kansas Corp. Com.,
June 2, 2006), 2006 Kan. PUC LEXIS, at p. 16.
29 As stated, supra, a 64 kbps chanel is also known as a Voice-Grade Equivalent ("VGE") chaneL. Qwest
report access lines as VGEs in service in its anual FCC ARS data. (Albersheim Dir., p. 36, and fn. 25.)
32
QWEST CORPORATION'S POST-HEARNG BRIF
It is also wort noting again the FCC stated that "business line counts are an objective set
of data that incumbent LECs have already created for other regulatory puroses," and that "by
basing our definition in an ARIS filing required of incumbent LECs, and adding UN figues, .
which must also be reported, we can be confident in the accuracy of the thresholds, and a
simplifed abilty to obtain the necessary information." TRRO,' 105. (Emphasis added.) Thus,
ILECs are directed to use data "already created for other regulatory purposes," and to follow the
FCC's simple and unambiguous definition to count business lines in determining which wire
centers meet the non-impairment thesholds established in the TRRO. (Albersheim Dir., p. 35.)
It stads to reason, therefore, that the CLECs' argument (Denney, pp. 26-32) that "spare
capacity" or "non-switched" lines should be excluded from the business line counts is simply
wrong.30 Likewise, there is no basis for the recommendation (Denney, pp. 32-33) that the
Commission could tae the laboring oar of requiring all CLECs operating in Idaho that have
lines that Qwest included in its line counts to "provide voice access lines associated with loops
that they purchase from Qwest," or worse yet, that the Commssion can rely on the experience of
one CLEC (Integra) to "estimate results for all CLECs" in Idaho. (Albersheim Reb., pp. 23-24.)
Finally, all decisions where this issue has been raised have all agreed with Qwests
interpretation of the FCC rule on counting high-capacity loops. (Albersheim Reb., pp. 17_19.)31
30 There is also no merit to the CLECs' attempt (Denney, p. 27) to parse the FCC's rule (47 CFR § 51.5) to
read that only lines "intended for business use" should be counted, as nothing in the rule establishes that
requirement (Albersheim Reb., pp. 19-20.)
31 See (I) Texas- See Logix Communications, L.P., v. The Public Utility Commission of Texas, et. ai.,
Docket No. 06-51697, slip op. (5th Cir. 2008); (2) Missouri- Report and Order, In the Matter of the Application of
Nu Vox Communications of Missouri, Inc. for an Investigation into the Wire Centers that AT&T Missouri Asserts are
Non-Impaired under the TRRO, Case No. TO-2006-0360 (Mo. P.S.C., March 31, 2008); (3) Indiana- Fina Order,
Petition of Indiana Bell Telephone Company, Incorporated for Expedited Resolution of Dispute with Nuvox
Communications Inc. Regarding Non-Impaired Wire Centers, Docket No. 42986 (Ip. U.R.C., August 15, 2007; (4)
Ohio- Finding and Order, In the Matter of the Petition of XO Communications, Inc. Requesting a Commission
Investigation of Those Wire Centers that AT&T Ohio Asserts are Nonimpaired, Docket No. 05-1393- TP-UNC (Oh.
P.U.C, June 6, 2006; (5) Kansas- Order Determining Proper Method for Fiber-Based Collocator and Business Line
Counts, In the Matter of Post-Interconnection Dispute Resolution of Southwestern Bell Telephone LP Against Nuvox
Communications of Kansas, Inc. Regarding Wire Center UNE Declassifcations, Docket No. 06-SWBT -743-COM
33
QWEST CORPORATION'S POST-HEARNG BRIEF
For example, the Fifth Circuit Court of Appeals said:
. . . the requirement at issue provides that "business line talles. . . (s Jhall account for
ISDN and other digital access lines by counting each 64 kbps-equivalent as one line." 47
C.P.R. § 51.5. The regulation does not indicate that ILEC's or CLEC's should, for the first
time, undertke building-by-building, end-user analysis. In-stead, the plain language
indicates that all lines in a high-capacity loop should count as business lines.32
And the Florida Commission stated:
We also agree with BellSouth that unused capacity on chanelized high capacity
loops should be counted in the business lines. As noted by BellSouth witness Tipton, the
FCC rules specifically state that "the business line talles. . . shall account for ISDN and
other digital access lines by counting each 64 kbps-equivalent as one line." ( 47 CFR
51.5) The FCC rule furter explains by way of example that a DSlline should be
counted as 24 business lines because it corresponds to 24 64 kbps-equivalents.33
Thus, although the CLECs criticize Qwest for counting all 24 chanels of capacity in a
high-capacity digital loop (Denney, pp. 26-33), the FCC's rule is very clear that business line
talles "(3) (sJhall account for ISDN and other digital access lines by counting each 64 kbps-
equivalent as one line," and thus that "a DSlline corresponds to 24 64 kbps-equivalents, and
therefore to 24 'business lines.''' (Emphasis added.) Thus, the CLECs may not agree with the
approach of counting all capacity in a high-capacity digital loop, or believe it is not logical or
(Kansas Corp. Com., June 2, 2006); (6) Texas- Order Approving Methodology to Determine AT&T Texa Wire
Centers which are Non- Impaied, Post-Interconnection Dispute Resolution Proceeding Regarding Wire Center
UNE Declassifcation, PUC Docket No. 31303 (Tex. P.U.C., April 7,2006); (7) South Carolina- Order Addressing
Changes of Law, In Re: Petition of BellSouth telecommunications. Inc. to Establish Generic Docket to Consider
Amendments to Interconnection Agreements Resultingfrom Changes of La, Docket No. 2004-316C, Order No.
2006-136 (SC P.S.C., March 10,2006); (8) Florida- Order No. PSC-06-D172-FOF- TP, Petition to Establish
Generic Docket to Consider Amendments to Interconnection Agreements Resultingfrom Changes in Law by
BellSouth Telecommunications, Inc., Fla. PSC, Docket No. 041269-TP (Fl. P.S.C., March 2,2006); (9) Georgia-
Order on Remainig Issues, Generic Proceeding to Examine Issues Related to BellSouth Telecommunications, Inc's.
Obligations to Provide Unbundled Network Elements, Docket No. 19341-U (Ga P.S.C. ,Febru 7, 2006); (10)
llinois- Arbitration Decision, Petition for Arbitration Pursuant to Section 252(b) of the Telecommunications Act of
1996 with Ilinois Bell Telephone Company to Amend Existing Interconnection Agreements to Incorporate the
Triennial Review Order and the Triennial Review Remand Order, Docket No. 05-0442 (IlL. Commerce Com., Nov.
2,2005); (11) Mississippi- Final Order, In Re: Order Establishing Generic Docket To Consider Change-OfLa To
Existing Interconnection Agreements. Docket No. 2005-AD-139, 2006 Miss. PUC LEXIS 680 (October 20, 2006).
32 See Logix Communications, L.P., v. The Public Utilty Commission of Texas. et. al., Docket No. 06-
51697, slip op. (5th Cir. 2008).
33 Order No. PSC-06-0172-FOF-TP, Petition to Establish Generic Docket to Consider Amendments to
Interconnection Agreements Resultingfrom Changes in Law by BellSouth Telecommunications, Inc., Fla PSC,
Docket No. 041269-TP (Fl P.S.C., March 2,2006); pp. 78-79.
34
QWEST CORPORATION'S POST-HEARNG BRIF
competition-friendly (Denney, p. 33), but this is the approach that the FCC established (and that
five commissions in Qwest s region have adopted, as well as all other cases deciding the issue). 34
This is also the approach implemented to count UNE loops in the Settlement Agreement that five
state commissions in Qwests terrtory have approved. In short, there is simply nothing in the
FCC rule that requires that these lines be "intended for business use" or be "actually used" in
order for them to be counted. To the contrar, the rule specifically states that one DS 1 line is
equivalent to 24 "64 kbps-equivalents," and ''therefore to 24 'business lines.''' (Albersheim,
Dir., p. 30; Albersheim Reb., pp. 17- i 8,i5
3. December 2007 line counts are appropriate for Boise Main DS3 loops
The CLECs frivolously offer the novel argument that they had not received "notice" that
Qwest is seeking non-impairment for DS3 unbundled loops in the Boise Main wire center until
they reviewed Qwest s direct testimony in April 2009. (Denney, pp. 17-18.) Thus, they argue
that Qwests December 2007 line counts should not be used, and instead, Qwest should use
December 2008 business line counts. (Id., pp. 17-18,36,38.) However, this argument does not
make sense, and thus Qwest wil show that December 2007 business line counts are appropriate
for the DS3 loops at the Boise Main wire center for puroses ofDS3 loop non-impairment. This
34 Likewise, the CLECs' arguent (Denney, pp. 31-32) that CLECs do not use high-capacity UNE loops at
their maximum potential capacity is irrelevant and a red herrng. Even if tre, there is nothng in the FCC's rules
that require an ILEC like Qwest to know or determine whether or not paricular CLECs use high-capacity UN
loops at their maxum potential capacity, or that require ILECs to count UNE loops based on how a CLEC uses
them. The rules simply require that Qwest count all UNE loops, and for high-capacity loops, that Qwest count each
64 kbps-equivalent as one line (and thus a DS i as 24 lines), regardless whether a CLEC actualy uses every circuit.
35 Qwest wil also show that the CLECs' claim that Integra was unable to "validate" or "verify" Qwest's
count of Integr lines is through no fault of Qwest. (See Albersheim Reb., pp. 20-24.) This is especially so because
Integra has been able to validate Qwest business line counts in the past in other cases and states, and because it
appear that Integr's line count is from a different (curent) vintage than the December 2007 vintae that is
applicable here. (Id., pp. 20-23.) Perhaps even more tellng is the fact that that the CLECs must combine all of their
arguents regarding UNE loops and the vintage of Qwest' s data and their arificial percentages to achieve line
counts below the thesholds for non-impairment that Qwest's line counts achieve. (See right-hand colum of
Exhbit Joint CLEC 207.) These adjustments plac the Boise Main wire center just 60 lines below the Tier i
threshold, which suggests a result-oriented approach. (Albersheim Reb., pp. 23-24.) Thus, the Commission should
not apply Integra's suggested percentage and changes to Qwest's business line counts and should rely on the
business line counts that Qwest has provided.
35
QWEST CORPORATION'S POST-HEARNG BRIEF
is especially so because that is the applicable vintage of data for this case (which the CLECs
otherwise do not dispute, other than for the Boise Main DS3 loop issue) and because the CLECs
indeed had "notice" in Qwest s petition and the data in support of the petition that Qwest filed in
June 2008 that the Boise Main wire center met the DS3 loop non-impairment threshold.
The CLECs' claim regarding "notice" for the Boise Main DS3 loop issue is plainly
frvolous. As Qwest noted in its direct testimony (ofRenée Albersheim), the business line
counts that Qwest provided in support of its petition in this proceeding clearly indicated that the
threshold for DS3 unbundled loops was reached in the Boise Main wire center. (Albersheim
Dir., p. 31 and fn. 20.) Moreover, as Qwest wil show, there are currently no DS3 unbundled
loops in the Boise Main wire center. (Albersheim Reb., pp. 8-9, 25-27.) Nevertheless, since
Qwests petition and supporting data clearly showed that it would demonstrate that the Boise
Main wire center exceeded 38,000 business lines and had four or more fiber-based collocators,
thus meeting both stadards for Tier 1 status, the petition clearly indicated the wire center is non-
impaired for DS3 loops even though it inadvertently did not mention DS3 loop non-impairment
in the petition. (Albersheim Dir., p. 31 and fn. 20.) Thus, there is no question that the Boise
Main wire center is non-impaired for DS3 loops, and that the CLECs had suffcient notice of it. 36
B. The CLECs' adjustments are improper
Finally, the CLECs propose certin specific adjustments to Qwests business line data.
(See e.g., Denney, pp. 33, 35, 38-39 and Highly-Confidential Exs. 206, 207.) Specifically, they
argue that the Commission could require all CLECs that have lines that Qwest included in its line
36 Moreover, even if the Commission were to use December 2008 business line data (which would not be
appropriate because Qwest's filed its petition in June 2008), there would stil be significantly more than 38,000
business lines at the Boise Main wire center (in addition to the five fiber-basd collocators), and thus DS3 loop non-
impaient. The only way the CLECs can show fewer than 38,000 business lines at Boise Main is though their
inappropriate "slicing and dicing" of Qwest business line counts that they advocate (based on various arguents,
adjustments and calculations). For the reasons set fort in the next subsection regarding the CLECs' improper
adjustments, the Commission should reject such torted attmpts to reach a desired result.
36
QWEST CORPORATION'S POST-HEARNG BRIEF
count totas to provide access lines associated with the loops that they purchase from Qwest, and
their witness performed a "calculation estimate" for his employer, Integra. (Denney, pp. 32-33;
Confidential Ex. 206.) Alternatively, the CLECs argue that ''the Commission could rely on the
experience of a large CLEC in the state, such as Integra, to estimate results for all CLECs in the
state." (Denney, p. 33 (emphasis added).) Then, after alleging problems with "verifying" Qwest
loop counts in the two wire centers (Denney, pp. 33-35), they set forth an alleged percentage of
Qwests Integra loop counts that Integra could "validate." (Id., p. 35, and Table 2.) Finally, the
CLECs argue the Commission should use December 2008 line count data (instead of December
2007) for the Boise Main wire center. (Id., p. 36.) After all these "calculations," "estimates" and
"adjustments," the CLECs "estimate" that the remaining loops and capacity are used for "non-
voice services," and thus, by using such "estimates," they claim Qwest has failed to meet the
business line thesholds for both wire centers at issue. (Id., pp. 38-39; Ex. 207.)
However, as Qwest wil show, the CLECs' "adjustments" to Qwests data are in conflct
with the TRRO, which requires that all loops, and all digital capacity, be counted, and thus such
adjustments and calculations are nothing more than a results-oriented approach that conveniently
(for CLECs) results in the Boise Main wire center not becoming non-impairment for DS3 loops
by a mere 60 lines. (Albersheim Reb., pp. 22_24.)37 Indeed, what is really tellng about these
CLEC "adjustments" is that they are all needed in order for Qwest not to meet the appropriate
non-impairment threshold (and even then, to baely not meet the threshold). Anything less than
accepting all of the CLECs' "adjustments" and data vintage argument would mean Qwest easily
37 As Qwest wil show, ultimately, the CLEC adjustments do not impac the Tier i non-impairment status
for DSI and DS3 transport and dark fiber for the Boise Mai wire center, and the Tier 2 non-impaient statu for
DS3 tranport and dark fiber for the Boise West wire center, because the CLECs admit that these wire centers each
have the required number of fiber-based collocators for such non-impairment statu. (See e.g., Denney, pp. 7,42.)
Thus, as to such non-impairment, this is pnmarly an academic arguent. However, because these issues are
importt for the DS3 loop non-impairment of the Boise Main wire center, as well as for futue non-impairment
designations, Qwest addresses the CLECs' inappropriate atempts to "slice and dice" these line counts in their result-
oriented atempts to decrease Qwests business line counts.
37
QWEST CORPORATION'S POST -HEARNG BRIEF
meets the 38,000 line non-impairment threshold, and thus would not help their argument. Thus,
the CLECs had to find a way to reach a business line count under 38,000, and it could only do so
with all of these creative adjustments and "estimates." (Id.; see e.g., Highy-Confidential Ex.
207.) The CLECs' attempted game of tortured math visibly exposes their ploy.
C. Non-impaired wire centers in Idaho based on business lines
Accordingly, based on Qwests analysis of the data the TRRO requires, and on Qwests
business line data as of December 2007, the Boise Main wire center meets the FCC's tranport
threshold for "Tier i" non-impairment, and the Boise West wire center meets the FCC's
transport threshold for "Tier 2" non-impairment. Furter, the Boise Main wire center meets the
non-impairment threshold for DS3 loops because it has more than 38,000 business lines and four
or more fiber-based collocators. (Albersheim Dir., p. 31, and fn. 20; pp. 33, 38; Qwest Highly-
Confidential Ex. 5; Albersheim Reb., pp. 36-37.)
II. QWEST'S COLLOCATOR EVIDENCE AND PROCESSES MEET THE TRRO
A. The CLECs agree that both Boise Main and Boise West are non-impaired
As Qwest noted, despite Qwests thorough investigation of the fiber-based collocators at
the Boise Main and Boise West wire centers, only one of the six collocators Qwest had identified
responded to Qwests June 4, 2008 letter requesting validation of their fiber-based collocation
data and that CLEC did confirm such status. (Torrence Dir., p. 21; Highly-Confidential Exs. 8,
9.) Nevertheless, the CLECs have now admitted that these wire centers have the required
number of fiber-based collocators for their respective non-impairment. (Denney, pp. 7,42.)
Accordingly, the Commission may issue an order declarng (l) the Boise Main wire
center as Tier 1 non-impaired for DS 1 and DS3 interoffce transport and dark fiber, and (2) the
Boise West wire center as Tier 2 non-impaired for DS3 interoffce transport and dark fiber, based
on the number of "fiber-based collocators" at those wire centers.
38
QWEST CORPORATION'S POST -HEARNG BRIEF
B. Owest's process to identify collocators is reasonable and should be adopted
As stated, the CLECs do not dispute the non-impairent of the Boise Main and Boise
West wire centers based on the number of fiber-based collocators at those wire centers.
Nevertheless, they raise several "concers" about Qwests process to verify and count fiber-
based collocators. (Denney, pp. 42-47,i8 However, as Qwest wil show, Qwests current
collocation identification and counting process yields accurate results and thus the CLECs'
"concerns" lack merit. (Rebuttal Testimony of Rachel Torrence ("Torrence Reb.), pp. 9~38.)
For example, Qwests letters to CLECs requesting validation of its findings of their
collocation status are a reasonable attempt to solicit CLEC paricipation. (Torrence Reb., pp. 10-
17.) These letters are routed to the appropriate personnel for each CLEC. However, even if a
CLEC does not respond (and many do not), Qwest does not equate such failure to respond with
CLEC "agreement" that it is a fiber-based collocator, as Qwest bases its decision on the many
factors set forth in the TRRO (and not merely on a CLEC's failure to respond). (Id., pp. 10-12.)
Further, although the CLECs complain about whether the letters are routed to the appropriate
personnel, Qwest wil show it sends them to the appropriate CLEC contact, and the CLECs do
not dispute they received their letters. (Id., pp. 12-14.) And finally, the CLECs' claim that
Qwest should conduct more of a "follow up" with CLECs (and thus essentially "baby sit"
CLECs), is much ado about nothing. Qwests notification process is reasonable, but Qwest
canot force CLECs to respond, and many CLECs fail to cooperate, presumably because they do
38 The CLECs allege that that (1) Qwest does not adequately notify or follow up regarding its letters to
CLECs about their collocations, (2) Qwest's memo to its centr offce personnel is wnttn in such a way as to
encourge Qwest employees to err on the side of finding fiber-basd collocations, (3) Qwest has in some states
counted carers as fiber-based collocators even if its venficaton worksheets indicated otherwise, (4) Qwest
inappropnatelycounted a "CLEC-to-CLEC connection" in Colorao as a fiber-based collocation, and (5) if the
Commission adopts the procedures in the Settlement Agreement, it should remove a provision regardig "express
fiber." (Denney, pp. 42-47.)
39
QWEST CORPORATION'S POST -HEARNG BRIEF
not believe it is in their best interests to cooperate. (Id., pp. 14-17.) Ultimately, it is a CLEC's
responsibilty to respond; Qwest cannot be a "baby-sitter" if a CLEC fails to respond. (Id.)
Qwest wil also show that its collocation field verifications are comprehensive and
performed in an objective maner. (Torrence Reb., pp.17-24.) As the Commission ca see
(Qwest Confidential Ex. 11), Qwests letter is objective, and thus the CLECs' complaint that
these letters encourage Qwest employees to "err" on the side of finding a fiber-based collocation
is without any basis. (Id., pp. 17-18.) Likewise, the isolated examples the CLECs raise about
collocation in other states four years ago (Denney, pp. 43-46) when the FCC had just issued the
TRRO are irrelevant to the issues here, and are easily rebutted. (Id., pp. 18-20,20-22,22-25.)
Finally, Qwest wil show that despite the CLECs' general concerns about "CLEC-to-
CLEC connections" (Denney, pp. 45-46), there were no such CLEC-to-CLEC connections here.
(Torrence Reb., p. 25.) Moreover, even if there had been, Qwests methodology correctly
identifies fiber-based collocators, and excludes non-fiber-based collocators, even if a CLEC-to-
CLEC connection is present. (Id., pp. 28-30.) Thus, there is no concern about "double counting"
of fiber-based collocators, either here in Idaho or with Qwests process in general, and Qwests
position is supported by the FCC. (Id., pp. 30_32.)39
Accordingly, there is no need for the Commission to make any changes or add any
requirements to Qwests process for identifying and counting fiber-based collocators for non-
impairment puroses. Moreover, this is a process that numerous CLECs (including Integra) have
agreed to, and that five commissions have approved, and that has proven to work in those other
39 The CLECs also argue that Qwest should provide advance notificaton to CLECs when a wire center is
within one fiber-based collocator of non-impairment (essentially, when there ar two fiber-based collocators in a
wire center). Qwest addresses this arguent in section VI., infra.
Finally, with respect to the provisions of the Settlement Agreement regarding express fiber that the CLECs
complain about (Denney, p. 47), Qwest has no objections to that provision being removed from the Settlement
Agreement. (Torrnce Reb., pp. 37-38.)
40
QWEST CORPORATION'S POST-HEARNG BRIEF
states that have had non-impaired wire center list update proceedings. The Commission should
thus reject the CLECs' arguments about any additional process.
III. THE COMMISSION SHOULD ADOPT THE PROCEDURES IN THE
SETTLEMENT AGREEMENT
As Qwest wil show, Qwest wil be updating the non-impaired wire center list in the
future when additional wire centers meet the TRRO's non-impairment criteria. Qwest proposes
to use for non-impairment designations in the future the same methodology and processes that it
employed for the two Idaho wire centers here, and that methodology and processes are set forth
in the Settlement Agreement that Qwest negotiated with numerous CLECs in other states and
that five state commissions have previously approved and adopted for general applicabilty in
those states.40 Qwest is proposing that the Commission adopt the methodology and processes of
the Settlement Agreement. (Albersheim Dir., pp. 20-28; Albersheim Reb., pp. 3-5.) These
procedures are reasonable and in the public interest, have been agreed to by numerous CLECs
and state commissions, and have worked well in the past.
40 As stated (see e.g., fn. 19), the Settlement Agreement was approved in Arizona, Minnesota Oregon,
Utah and Washington. See e.g., Arizona- In the Matter of the Application of Dieca Communications DBA Covad
Communications Company, Eschelon Telecom of Arizona Incl., McLeodUSA Telecommunications Services, Inc.,
Mountain Telecommunications, Inc., XO Communications Services, Inc. and Qwest Corporation's Requestfor
Commission Process to Address Key UNE Issues Arisingfrom Triennial Review Remand Order, Including Approval
ofQwest Wire Center Lists (Phase II), Arina Corporaton Commission, Docket Nos. T-03632A-06-0091, T-
04302A-06-0091, T-03406A-06-0091, T-03402A-06-0091, T-01051B-06-0091, Order, Februar 4, 2009;
Minnesota- In the Matter of Qwest 's Petition for Approval of Additions for 2008 to the Non-Impaired Wire Center
List, Minnesota Public Utilties Commission, Docket No. P-421/ AM-08-726, Order Approving Petition to
Reclassify the Little Falls Wir Center as Tier 2 Impaired, Janua 8, 2009; Oregon- Petition for Commission
Approval of2007 Additions to Non-Impaired Wire Center List, Oregon Public Utilty Commission, Docket UM
1326, Final Order, September 18, 2009; Utah- (1) In the Matter ofQwest Corporation's Petitionfor Commission
Approval of 2007 Additions to Non-Impaired Wire Center List and Motion for Expedited Issuance of Protective
Order, Uta Public Service Commission, Docket No. 07-049-30, Report and Order Approving Tier 2 Designation of
Qwests Orem Mai Wire Center, November 20,2007; (2) In the Matter ofQwest Corporation's Petition for
Commission Approval of 2007 Additions to Non-Impaired Wire Center List and Motion for Expedited Issuance of
Protective Order, Docket No. 07-049-30, Report And Order Approving Tier 2 Designation of Qwest's Midvale
Mai Wire Center, October I, 2007; Washington- In the Matter of the Petition ofQwest Corporation, For
Commission Approval of 2007 Additions to Non-Impaired Wire Center List, Washington Utilities and Trasporttion
Commission, Docket No. UT -073033, Initial Order Grating Petition for Approval of Additions to Non-Impaired
Wire Center List, July 30, 2008. (Albersheim Dir., p. 22, fn. 16; Albersheim Reb., p. 3, fn. 3.)
41
QWEST CORPORATION'S POST-HEARNG BRIF
A. Qwest has not violated the Settlement Agreement by proposing its methods
and procedures for use for future non-impairment proceedings here in Idaho
Qwest notes that the CLECs make much ado about a certin provision in the Settlement
Agreement which they contend means Qwest canot propose the methodology and processes in
that agreement as a basis for this Commission to use for future non-impairment proceedings.
Thus, their witness makes an incorrect legal argument that Qwest has somehow violated the
Settlement Agreement by proposing it here. With all due respect to the CLECs' witness, a non-
lawyer, he is simply incorrect about his legal conclusion. There is simply nothing in the
Settlement Agreement that prohibits Qwest from proposing that this Commission (or any other
commission) adopt the methodology and processes set forth in the Settlement Agreement as
reasonable processes for future non-impairment proceedings. This is, of coure, also an
agreement that numerous major CLECs (who are knowledgeable and sophisticated carers
acting in their best interests and who had counsel representing them, including the CLECs'
witness' own employer) agreed were reasonable (reasonable enough anyway to bind themselves
to it in those larger states that had earlier non-impairment proceedings). (Albersheim Reb., p. 7.)
In his testimony, the CLECs' witness also makes much ado about the Settlement
Agreement provision that provides it canot be used as "evidence or impeachment." (Denney,
pp. 12-13.) Qwest does not quarel with that provision, and it is not using the Settlement
Agreement as "evidence" or "impeachment" against any settling CLEC. Nor is Qwest
attempting to enforce it against any settling CLEC who is not abiding by the agreement, or to use
it to impeach a CLEC in those five states who might now have "buyer's remorse." Rather,
Qwest is merely advising this Commission (1) of the undisputed fact that the agreement has been
entered into (which the agreement does not prohibit) -a fact that is underscored by its public
filing and availabilty, as the CLECs admit (id., p. 12)), and (2) that Qwest believes the
42
QWEST CORPORATION'S POST-HEARNG BRIF
Settlement Agreement's methodology and processes are reasonable ones that this Commission
may want (but is certainly not obligated) to consider and adopt. (Albersheim Reb., p. 7.)
Moreover, to allay the CLECs' witness' concerns (Denney, pp. 12-14), Qwest admits that
"no precedent is established." Indeed, nowhere is Qwest arguing that the Commission is
somehow "obligated" to adopt the methodology and processes in the agreement, much less the
agreement itself. Nor is Qwest arguing the any paricipant in this case is legally barred from
advocating a position inconsistent with the Settlement Agreement in this docket. Again, Qwest
is simply presenting the methodology and processes from that Settlement Agreement, with
Qwest's two-year experience having used it with numerous CLECs in those five states, to show
the Commission that, rather than "reinvent the wheel" every year there is a non-impairment
proceeding, the Commission should use the methodology and processes (some or all of them, at
the Commission's discretion) as a way to evaluate such futue non-impairment proceedings.
(Albersheim Dir., pp. 7-8.) Thus, the CLECs' conclusion that Qwest's seeking this Commission
to approve the methodology and processes of the Settlement Agreement "can only be done by
using the agreement as a precedent in violation of its own terms" (Denney, p. 14: 11-12) is simply
the result of their witness' apparent misunderstading of the legal term "precedent" and of the
legal significance of both that provision and what Qwest has asked ths Commssion to dO.41
4\ Nor, contr to the CLECs' witness' apparent concerns (Denney, pp. 13-14), does Qwest tae the
position that the Settlement Agreement is "binding" on or applies to any cariers other than the carers in the states
that were at issue in the agreement. Qwest fully recognizes that the Settlement Agreement applies only to those
cariers in those states, as its attorney ariculated so eloquently in the Colorao docket. (Id.) Rather, Qwest is
merely advising the Commission of the fact that (I) various major CLECs in various states that had earlier non-
impaient proceedings have in fact agreed to this methodology and procedures (since they entered into the
agreement, have not withdrawn from it, and thus ar stil operating under it), (2) such procedures have worlæd well
the past two years for Qwest and numerous CLECs, and (3) Qwest believes such methods and procedurs are
reasonable and in the public interest, and accordingly, that the Commission should adopt these procedures for futue
non-impaient proceedigs in Idaho. (Albersheim Dir., pp. 7-8, 9-10.)
43
QWEST CORPORATION'S POST-HEARNG BRIEF
B. The methodology and procedures in the Settlement Agreement are reasonable, in
the public interest and comply with the TRRO. and the affected CLECs have agreed
As Qwest wil demonstrate, Section V of the Settlement Agreement, which outlines the
methodology and processes for counting business lines and identifying and counting fiber-based
collocators, complies with the FCC's rules in the TRRO. (Albersheim Dir., p. 24.) In addition,
Section VI, which details the process that parties agreed for adding wire centers to the non-
impaired wire center list in the future, sets forth reasonable procedures, including the opportnity
for CLECs to dispute Qwests additions to the non-impaired wire center list and reasonable
transition periods to allow CLECs to transition from UN services to alternative services, and
thus this process is in the public interest. This process provides a comprehensive and productive
blueprint for TRRO implementation in the future. This process has been used successfully to
sta dockets, disseminate confdential information, allow for objections and come to resolution
regarding Qwests additions to the non-impaired wire center lists in those five states since its
approval by the state commissions, with a minimum of litigation and process. (Albersheim Dir.,
pp. 24-27; Albersheim Reb., pp. 9-10.)
C. The CLECs' other arguments about the methods and procedures lack merit
Finally, Qwest disagrees that with the CLECs' argument that it is not necessar for the
Commission to decide all of the issues regarding TRRO implementation in this case, but only
whether certin wire centers are non-impaired. (Denney, p. 19.) Rather, Qwest believes that it is
most effcient, and the best use ofthis Commission's time and resources, to settle all questions
pertaining to the implementation of the TRRO in this proceeding. (Albersheim Reb., p. 3.)42 As
stated, using the procedures established in the Settlement Agreement, Qwest has proposed
42 That is how Qwest has approached the implementation ofthe TRRO in all of Qwest's states. And that ishow the TRRO has been implemented in the five sttes in which the state utility commissions adopted the Settlement
Agreement. (Albersheim Reb., p. 3.)
44
QWEST CORPORATION'S POST-HEARNG BRIEF
additions to its non-impaired wire center lists in all five of those states, and in each case, the
process established by the agreement was used successfully to sta dockets, disseminate
confidential information, allow for objections, and come to resolution regarding the additions to
the non-impaired wire center lists in various states. The experience for Qwest and the CLECs in
these five states in the past two years (non-impaired wire center updates in 2007 and 2008) has
been a productive one with a minimum oflitigation and process. (Id., pp. 3-4, and see fn. 4
(identifying the TRRO non-impairment update cases and decisions in 2007 and 2008 in the other
five states that adopted the settlement agreement).) Otherwise, the result would be an excess of
future litigation before this Commssion.43 Each lengty litigation would also serve the CLECs'
interests as this would allow them more time to continue to take advantage ofUN pricing in the
wire centers at issue, but this would be the only benefit of putting off resolution of these issues
now. Unnecessar additional litigation would also only serve to tae additional time and
resources away from other matters before this Commission. Qwest does not believe this is an
effcient use of this Commission's resources. (Albersheim Reb., p. 5.)
Likewise, the CLECs' argument that Qwest has somehow "misstated" that the paries to
the Settlement Agreement agreed the agreement complies with the TRRO (Denney, pp. 15-16)
canot be taken seriously. Qwest ca state without qualification that it was clear that no par to
the Settlement Agreement would have signed an agreement that did not comply with the FCC's
rules.44 The CLECs' citation to a certin provision in the Settlement Agreement (Denney, p. 16,
fn. 28) simply pertins to the fact the agreement was in fact a settlement, or compromise of
43 That is, every year that Qwest would seek to update its list of non-impaired wie centers in Idao, the
same issues raised here would be rased again, and another lengthy litigation could ensue. This is in stak contrast to
the states in which the commssions have adopted the settlement ageement, where resolution has been reached
quickly in each case where updates were made to the non-impaied wire center lists. (Albersheim Reb., p. 5.)
44 To suggest otherwise would be to suggest that a par was wiling to violate the FCC's rues or
applicable law. Indeed, without disclosing any confidential settlement discussions or information, Qwest can say
generally that durng those negotiations, all paricipants made it very clear that the end result must comply with the
FCC's rues. (Albersheim Reb., p. 6.)
45
QWEST CORPORATION'S POST-HEARNG BRIEF
differing views, and that the paries entered into the negotiations tang different positions. It
certnly does not mean, however, that simply because a pary was wiling to compromise off of
its original (pre-settlement) position, the end result of the compromise does not comply with the
TRRO. This provision simply has no bearng on whether the settlement agreement is compliant
with the FCC's rules or the FCC's TRRO.
Finally, for the reasons set fort throughout this brief, Qwest respectfully submits that the
Commission should reject each of the CLECs' recommendations (Denney, pp. 19-22) that they
make if the Commission addresses the issues in the Settlement Agreement.
Accordingly, Qwest respectfully submits that the Commission should find that the
methodology and procedures set forth in the Settlement Agreement for updating the non-
impaired wire center list in the future are reasonable, in the public interest and comply with the
TRRO. Thus, it should adopt such procedures for future non-impairment proceedings in Idaho.
IV. A 90-DAY TRANSITION PERIOD IS REASONABLE AND ADEQUATE
The CLECs also claim that CLECs should be given six months to tranition from UNs
to non-UNE services once a wire center is declared non-impaired, apparently based on the initial
TRRO trnsition period when it was first implemented in 2005. (Denney, pp. 47-50.) However,
the FCC established the one-year initial period based on its assumption there would be large
numbers of circuits to be converted during the initial transition. That is not the case in Idaho,
however, where only two wire centers are at issue. Also, most large wire centers in Qwest states
have already been transitioned due to non-impairment of those wire centers. (Albersheim Reb.,
p.25.) Indeed, there are currently no UN services to be transitioned in Idaho. (ld., pp. 25-26.)
Nevertheless, a transition period may be necessary in the future if additional wire centers
with existing serices are declared non-impaired. In the agreement, the paries established a 90-
day transition period for such circumstaces. Qwest believes that a 90 days period should be
46
QWEST CORPORATION'S POST-HEARNG BRIEF
more than adequate, especially since it is not likely there wil be a significant number of services
impacted by future non-impairment declarations in Idaho. (Albersheim Reb., pp. 26-27.)
V. QWEST is ENTITLED TO ASSESS AN NRC TO CONVRT UNEs TO
SUBSTITUTE SERVICES IN NON-IMPAIRED WIR CENTERS
Qwest is also entitled to assess a nonrecurng charge ("NRC") when converting a former
UN circuit to an alternative Qwest circuit, such as a private line or special access circuit, in
wire centers meeting the FCC's non-impairment thresholds. Since CLECs that choose to convert
UNE circuits to alternative Qwest circuits have other business alternatives, and thus voluntarily
request conversions, and because Qwest incurs expenses associated with converting UN
circuits to private line circuits, Qwest is entitled to recover its tarffed Design Change Charge as
an NRC for conducting this conversion work at CLEC requests. (Hunicutt Dir., pp. 4, 12-13.)
A. The CLECs' arguments against the conversion NRC are without merit
The CLECs raise a plethora of claims, including several irrelevant or red herrng
arguents, against Qwest's conversion NRC.45 However, these arguments are not persuasive.
First, Qwest notes that it wil use an NRC to recover a portion of the costs it actually
incurs when implementing these conversions. (Hunnicutt Dir., pp. 3-4.) This is especially so
because in the case of the conversions ofUNE facilties to alternative facilities, it is the CLEC's
choice to remain on Qwests facilties; conversely, if a CLEC chooses another alternative, then
there would be no charge since Qwest would not have to incur the costs of performing the
associated taks. (Id., p. 4; Hunnicutt Reb., pp. 3-4.) Obviously, if Qwest were to perform these
45 The CLECs argue that (1) UN conversions are withn ths Commission's jursdiction, (2) conversions
should not "impact" CLEC end-user customers, (3) it is not necessar for Qwest to change the Circuit ID to convert
a UNE to an alternative service, (4) Qwest should not charge CLECs to convert UNEs to higher-priced alternative
facilities, (5) Qwests Design Change Charge is inappropriate for UN conversions, (6) seamless conversions can be
accomplished though a simple biling change, and (7) other states in Qwest's ILEC region have found a charge for
conversion is inappropriate. (Denney, pp. 50-71.) As Qwest wil show, these arguments, which all appear to be
scattrshot arguments in the apparent hopes that one or more wil stick, ar not persuasive or well taken.
47
QWEST CORPORATION'S POST-HEARNG BRIF
conversion activities, but not allowed to charge CLEC for such activities, the cost burden would
be unfairly shifted to Qwest and its end-user customers, thereby disadvantaging Qwest in a
market the FCC has deemed competitive. Thus, to the extent Qwest incurs costs to faciltate a
CLEC's request to remain on Qwests facilities and convert from a UN service to a private line
service, Qwest should be entitled to assess an appropriate charge. (Hunnicutt Dir., pp. 12-13.)
In addition, contrar to the CLECs' suggestions (Denney, pp. 53-55), such conversions
are not subject to sections 251 and 252 of the Telecommunications Act. This is so because while
sections 251 and 252 apply prior to non-impairment for a paricular UNE service at a given wire
center, once a wire center is non-impaired, then sections 201 and 202 (requiring "just and
reasonable rates") apply to the conversion ofthejormer UN service to the alternative (non-
UN) service. See TRO, ~ 656. (Hunnicutt Dir., pp. 6-7.) The case law around the country is
overwhelming that such former UN services are not subject to TELRIC or to state commission
pricing, because they are no longer subject to sections 251 and 252.46
The same holds tre for an element under section 271 of the Act. TRO, ~ 664.
(Hunnicutt Dir., p. 8.) In fact, just last week the Ninth Circuit joined the First, Seventh, Eighth
and Eleventh Circuits in holding that the Act does not authorize state commissions to determine,
46 See e.g., Il. Bell TeL. Co. v. Box, et al., 526 F.3d 1069, 2008 U.S. App. LEXIS 11077 (7th Cir. 2008); Il.
Bell Tel. Co. v. Box, et al., 548 F.3d 607, 2008 U.S. App. LEXIS 24201 (7th Cir. 2008); Verizon New England, Inc.
v. Maine Public Utilities Commission; Verizon New England, Inc. v. New Hampshire Public Utilities Commission,
509 F.3d 1,2007 U.S. App. LEXIS 21349 (1st Cir. 2007); BellSouth Telecomms, Inc., v. Ga. Pub. Servo Comm 'n., et
al., 555 F.3d 1287, 2009 U.S. App. LEXIS 13 10 (11th Cir. 2009), affrming _ F.Supp.2d _,2008 U.S. Dist.
LEXIS 51786, 2008 WL 4999187 (N.D. Ga. Jan. 3,2008); see also Il. Bell. Tel. CO. V. Hurley, 2008 U.S. Dist.
LEXIS 6326 (N.D. Il., Januar 28,2008) (affrmed, 548 F.3d 607,2008 U.S. Dist. LEXIS 24201 (7th Cir. 2008)),
citing to Mich. Bell TeL. CO. V. Lark, No. 06-11982, 2007 WL 2868633, at * 1 (E.D. Mich., Sept. 26,2007);
BellSouth Telecomms., Inc. V. Kentucky Pub. Servo Comm 'n, No. 06-65-KKC, 2007 U.S. Dist. LEXIS 69152, at *49
(E.D. Ky., Sept. 18,2007); Qwest Corp. v. Arizona Corp. Comm 'n, 496 F. Supp. 2d 1069,1077-79 (D. Arz. 2007);
Ilinois Bell Tel. CO. V. O'Connell-Diaz, No. 05-e-1149, 2006 WL 2796488 at *13-14 (N.D. Il, September 28,
2006); Dieca Communications, Inc. V. Florida Pub. Serv. Comm 'n, 447 F. Supp. 2d 1281, 1285-86 (N.D. Fla. 2006);
Southwestern Bell Tel., L.P. V. Missouri Pub. Servo Comm 'n, 461 F. Supp.2d 1055, 1066-69 (E.D. Mo. 2006);
BellSouth Telecomms., Inc. V. Mississippi Pub. Servo Comm 'n, 386 F. Supp. 2d 557, 565-66 (S.D. Miss. 2005);
Verizon New England, V. New Hampshire Pub. Utils. Comm 'n, No. 05-CV-94, 2006, WL 2433249, at *8 (D.N.H.
Aug. 22, 2006), aff'd Verizon New England, 2007 WL 2509863, at *5; BellSouth Telecomms., Inc. v. Ga. Pub. Servo
Comm 'n, 1:06-CV-00162-CC, slip op. at 15 (N.D. Ga. Jan. 3, 2008).
48
QWEST CORPORATION'S POST-HEARNG BRIEF
enforce or implement Section 271 requirements. See Qwest Corporation v. Arizona Corporation
Commission, et al., No. 07-17079, D.C. No. CV-06-01030-ROS (9th Cir., June 8, 2009),
Opinion for Publication, 6777, at 6790-6791 (citing to these appellate decisions). 47 Therefore,
such conversion need not be priced under TELRIC concepts, but may be priced at market-based
rates. (Hunnicutt Dir., pp. 19,20.) Likewise, and for these reasons, neither this docket, nor any
Commission proceeding, is the appropriate forum to address pricing for elements that are
"delisted" (no longer on the list of required UNEs), and thus Qwest is not required to fie a cost
study for this charge. (Hunnicutt Dir., pp. 4-5; Hunicutt Reb., pp. 6, 8-9.)
In addition, Qwest wil show why the circuit identifier ("Circuit il") must be changed
for several reasons (including for record-keeping purposes and technical reasons, such as per
Telcordia code requirements). Qwest wil also show that other ILECs also charge to change the
Circuit il, as it is an accepted industry practice when converting a UN service to an alternative
service. (Hunicutt Dir., p. 16; Albersheim Reb., pp. 28_29.)48
Finally, Qwest wil show that not only is the process for converting a UN circuit to a
private line circuit transparent to a CLEC's end-user customer, but it is also used to avoid
placing the end-user customer's service at risk. (Hunicutt Dir., pp. 17-18.) In fact, Qwest
interjects manual activities into the process so that certain automated steps do not occur that
could otherwise result in disruption of services. Indeed, Qwest has conducted more than 1,500
47 See also Verizon New England v. Maine Public Utilities Comm'n, 509 F.3d 1, 7; Ilüwis Bell Tel. Co. v.
Box, 548 F.3d 607, 613 (7th Cir. 2008); Southwestern Bell Tel.., L.P. v. Mich. Public Servo Comm 'n, 530 F.3d 676,
682-683 (8th Cir. 2008); BellSouth Telecomms. Inc. V. Ga. Public Servo Comm 'n, _ F.3d -' 2009 WL 368527
(lIth Cir., Jan. 26, 2009). The Ninth Circuit in Qwest also found that numerous federal distict cour in other
circuits have similarly decided that state commssions do not possess power to determine or enforce section 271
requirements, and that the only federal cour to reach a contr conclusion was reversed. Qwest, at 6790, fn. 9.
48 The "biling change" that the CLECs describe (Denney, p. 67) is actually a complex and expensive
"work-around" that Qwest was required to implement due to a Washington arbitration order that is curently on
appeal. (Albersheim Reb., pp. 29-30.) It is of no significance here.
49
QWEST CORPORATION'S POST-HEARNG BRIEF
conversions and there have been no complaints from CLECs about customers whose service has
been disrupted as a result of this conversion process. (Hunicutt Dir., pp. 17-18.)
B. Owest's Design Change Charge is a reasonable proxy
Finally, Qwest wil show that its $25 interstate taffed Design Change Charge rate is a
reasonable proxy for this conversion and thus should be used, instead of a unique charge for the
UNE-to-private line conversion process.49 This is so because the modified Design Change
Charge involves functional areas and work tasks that are similar to those associated with the
conversion of a UN service to a private line service or facility. In addition, it provides a
conservative estimate of the costs that Qwest wil incur when converting CLEC high-capacity
loop and transport UNs to their private line counterpars. Due to the systems involved in the
separate tracking ofUNE services and private line services, as well as the additional manua
efforts that Qwest undertkes to ensure there are no service disruptions for CLEC customers, the
UNE-to-private line conversion orders are typically more costly to process than a typical design
change job. The use of the existing Design Change Charge, however, avoids the complexity of
adding a new charge to Qwests biling systems, and gives CLECs the benefit of a very
conservative charge when compared with the costs associated with the actual activities that
Qwest undertkes during this conversion process. (Hunnicutt Dir., p. 10.)
There is simply, therefore, no basis for the CLEC proposal (Denney, p. 52) to set the
conversion rate to "zero." This is especially so because a zero rate would be unreasonably
discriminatory to other similarly-situated carers and would distort economic assessments of
alternatives (such as CLEC self-provisioning of its own facilities). (Hunnicutt Reb., pp. 9-10.)
49 It is not likely that the CLECs that were paries to the Settlement Agreement would have agreed to the
$25 charge if they believed it was an unreasonable charge.
50
QWEST CORPORATION'S POST-HEARNG BRIF
Accordingly, Qwest is not asking the Commission to determine the reasonableness of
Qwests taffed Design Change Charge. Rather, Qwest wil merely demonstrate the nature of
the work activities that it wil perform in processing the conversions from UNE circuits to
private line circuits at those wire centers that have been deemed non-impaired. Qwest believes
that its existing tariffed Design Change Charge represents an appropriate charge to CLECs for
Qwests processing of these conversions. In short, the Commission should acknowledge that
Qwest has a right to assess such a charge for the work that it performs in performing such
conversions. (Hunnicutt Dir., pp. 10-11.)
VI. THE REQUESTED NOTICE REQUIREMENTS SHOULD BE REJECTED
The CLECs also argue that the Commission should require Qwest to provide advance
notice when a wire center is "nearng non-impairment," which to the CLECs means when a wire
center is within 5,000 business lines or one fiber-based collocator of non-impairment. (See
Denney, pp.72-79.) However, as Qwest wil show, there is absolutely no legitimate reason to
add this administrative burden upon Qwest. Other than one commission, all other state
commissions have not accepted this recommendation, despite the CLECs' witness' and his
employer's repeated (but unsuccessful) attempts to convince such commissions to require such
notification in other initial non-impairment proceedings in 2006 and 2007. (Albersheim Reb.,
pp. 33-34; Torrence Reb., p. 36.)
More importtly, however, the thresholds that the CLECs advocate are not meaningfL.
For exaiple, simply because a wire center is within 5,000 lines or one fiber collocator from non-
impairment does not mean that a change in the impairment classification for that wire center is
imminent. (Albersheim Reb., p. 34; Torrence Reb., p. 33.) Moreover, with respect to business
lines, the Commission should recall that Qwest only collects the business line counts once a
year. Thus, while a wire center may be within 5,000 lines of a non-impairment threshold in
51
QWEST CORPORATION'S POST -HEARNG BRIF
December of any given year, that certinly does not mean the wire center wil meet or exceed the
threshold in the following year, or even that it wil likely do so. (Albersheim Reb., p. 34.io
Likewise, most Tier 3 wire centers with fiber-based collocators have already been identified as
being within one fiber-based collocator of becoming a Tier 2 wire center (in other words, these
wire centers have two fiber-based collocators, and three are needed to become a Tier 2 wire
center), and have been within one collocator since 2005 when the TRRO was issued, thus
rendering the proposed notification requirement immateriaL. (Torrence Reb., pp. 33-34.)
Finally, advance notification could allow a CLEC to attempt to "game" the system or
take creative advantage by changing its business plans so that a wire center would be unlikely to
meet the threshold. (Albersheim Reb., p. 34; Torrence Reb., pp. 34-35.) And while the CLECs
note that the Colorado Commission agreed with such proposal, they conveniently fail to mention
they have advocated this recommendation since 2006 (in the initial non-impairment proceedings)
and yet no other state commission has accepted the recommendation or imposed this burden
upon Qwest. (Albersheim Reb., p. 34; Torrence Reb., pp. 35-36.) They also fail to note that the
CLECs who entered into the Settlement Agreement, which includes Integra, agreed not to
include any such advance notification requirements in the agreement. (Torrence Reb., p. 36.)
In short, the FCC set forth the non-impairment thresholds, and therefore, requiring an
ILEC to report in addition to that threshold is an undue burden, from both an operational and
resource perspective, that the FCC clearly does not require. (Albersheim Reb., p. 35; Torrence
Reb., pp. 36-37.) The CLECs, of course, canot point to any such requirement in the TRRO
itself. (Torrence Reb., p. 35.) It should be suffcient that when Qwest becomes aware that a wire
50 Likewise, there is no merit to the CLECs' clais that Qwest should be required to make data available
every year, or that Qwest already does so in its ICONN database. This is especially so because there is no
relationship between the data that Qwest provides in the ICONN database and the data that Qwest collects for TRRO
non-impaient purses. (Albersheim Reb., p. 35.)
52
QWEST CORPORATION'S POST -HEARNG BRIEF
center has actually met the non-impairment requirements to warrant a change its impairment
status, Qwest wil notify this Commission and CLECs that Qwest is seeking a change in the wire
center's impairment designation. (Albersheim Reb., p. 35.)
VII. THE NON-IMPAIRENT EFFECTIVE DATE SHOULD BE 30 DAYS AFTER
QWEST FILED ITS DATA
The Commission should find that the effective date for non-impairment of these two
Idaho wire centers is July 27, 2008, which is 30 days after Qwest filed its data showing that both
of these wire centers are non-impaired. Any other result would reward CLECs with an unfair
advantage due to the regulatory lag that occurs in Commission dockets. Any other result would
also have the effect of giving CLECs an incentive to needlessly object to Qwests non-impaired
wire center designations in the future in the hopes that by the time the non-impairment issues
have been decided, the effective date would have been delayed.
Thus, Qwest believes that the more appropriate effective date for the non-impairment of
these four wire centers is 30 days after Qwest filed its data in support of its non-impaired wire
centers. Since Qwest fied its data in support of its non-impaired wire centers on June 27, 2008,
the effective date should be July 27, 2008 for both wire centers.
First, Qwest notes that in the Settlement Agreement, which the settling pa¡ies entered
into in 2007, the paries agreed that the effective date for the vast majority of wire centers at
issue should be March 11,2005. (See Ex. 4, § IILB., pp. 4-5.) March 1 1,2005 was the effective
date of the TRRO. (Albersheim Dir., p. 12.) This agreed date is clearly recognition by all
paries, including the CLECs in those initial non-impairment dockets (which included Integra),
that state commissions should find the effective date to be when those wire centers were in fact
non-impaired, regardless that there might be some delay inherent in state commission
proceedings. Indeed, the Settlement Agreement was not approved by the state commissions until
53
QWEST CORPORATION'S POST -HEARNG BRIEF
varous times throughout 2007, more than two years after the paries' agreed-upon effective date
for most wire centers on the initial list of non-impaired wire centers. (See fn. 40 for the various
dates of state commission approvals of the Settlement Agreement.)
Further, the Settlement Agreement does not specify the date on which a "disputed" wire
center designation becomes effective once the dispute has been resolved. It only discusses a
specific effective date for undisputed wire centers, which is 30 days after the "Filng Date"
(which is the date that Qwest has submitted its non-impairment or tier designations, with
supporting data, for the state commission to review), unless the state commission orders
otherwise. (See Ex. 4, §§ I., p. 3 and VI.F.2., pp. 4-5.) Neverteless, Qwest believes that the
spirit and intent of the Settlement Agreement, and good public policy, is that if CLECs object to
a wire center's non-impairment designation, but the Commission ultimately finds that the wire
center is indeed non-impaired (as Qwest had designated), the effective date should be 30 days
after the "Filng Date," or July 27, 2008 here. That would be the only just result, especially since
the end result would stil have been the same as if the CLECs had not disputed the designation.
Otherwise, there would never be any incentive for CLECs to agree to a wire center's non-
impairment designation, because any dispute or objection would delay the effective date until the
dispute was resolved.
In this proceeding, Qwest fied its initial petition on June 20, 2008, with its supporting
data showing both of its Idaho wire centers to be non-impaired on June 27,2008.51 Accordingly,
51 Qwest also notes that the CLECs did not object to the wire centers being non-impaired for transport and
dak fiber based on the number of fiber-basd collocators (Denney, pp. 7,42), and thus accepted Qwest's position
that these two wire centers are non-impaired based on the data that Qwest fied on June 27, 2008. Thus, although
they may stil object based on the business line counts at those wire centers, they age that these two wire centers
ar non-impaired for transport and dark fiber at the Tier I level (Boise Main) and the Tier 2 level (Boise West).
Moreover, even as to the CLECs' objections based on business line counts, the evidence wil show that
there is no rational basis for such "objections." First, their main complaints about business lines ar premised on
their atmpts to slice and dice the total number of business lines based on their arguents about "residential UNE
loops," "spare capacity" and data vintae in order to reach a favorable result. (Denney, pp. 23, 25-26 and 26-33.)
54
QWEST CORPORATION'S POST-HEARNG BRIF
the effective date for the non-impairment of these two wire centers should be July 27, 2008.
Alternatively, if the Commission were to find that another effective date for either of these wire
center's non-impairment were more appropriate, it should find such effective date. Neverteless,
Qwest does not believe the Commission should find an effective date to be 30 days after the
Commission issues its order here. Such a late effective date would have the result of rewarding
CLECs for the delays and regulatory lag that are the inevitable or inherent result of a
Commission proceeding.
Finally, yet another reason for the Commission to adopt Qwests recommendation of a
July 27,2008 effective date is that a later effective date would have the effect ofincenting
CLECs to object unecessarily to Qwests future non-impairment designations. This is
especially so because the CLECs could do so in the hopes that they could unnecessarly delay the
effective dates of non-impairment, even if ultimately the CLECs' objections to Qwests
designations were not successfuL. Establishing a later effective date would set a precedent that
could give CLECs an improper incentive to raise a wire center dispute, even if completely
unfounded, simply to delay the process. 52
However, assuming that the Commission rejects the CLECs' attempts to use their creative math against Qwests
business line counts (see e.g., Albersheim Reb., pp. 23-24, and 10-24 generally), the Commission should likewise
find that the appropriate effective dae for the DS3 loop non-impairment in the Boise Main wire center is 30 days
(July 27,2008) afer Qwest supported its petition with its data (June 27, 2008).
52 The CLECs may argue that despite their ageement that the two wire centers here are non-impaied
based on the number of fiber-based collocators there, it was necessar to investigate Qwest's non-impairment
designations, or that any objections they may have raised here were "legitimate," or were not an attempt to
unecessarly delay the process. However, whether or not any objections the CLECs raised here were legitimate or
an attmpt to unecessarly delay the process would be completely irrelevant and beside the point. The Commission
should not be put in the position of determining whether an objection is "legitimate" or in "good faith" or
"frivolous" or "fairly debatable." The Commssion should only have to determine whether the data that Qwest has
presented meets the TRRO's non-impaient threshold, and thus whether a paricular wire center is non-impaired.
All of the evidence here wil point to the fact that Qwest submitted the data that shows it meets the non-impairment
theshold, and thus that both wire centers are non-impaired, as of June 27, 2008.
55
QWEST CORPORATION'S POST-HEARNG BRIEF
VIII. THE COMMISSION'S NON-IMPAIRMENT DESIGNATIONS SHOULD BE OF
GENERA APPLICABILITY AN THUS BINDING ON ALL CLECs
Finally, the Commission's non-impairment determinations on these wire centers must
necessarly apply to all CLECs in Idaho. This is simply logical- indeed, it would be ilogical to
have the Commission's determinations apply to one set ofCLECs (such as the interveners), but
not to the many other CLECs who had an opportnity to paricipate in this docket but apparently
chose not to do so. Moreover, the FCC based the non-impairment triggers based on existing and
potential competition in a geogrphic market, applying to all CLECs in a given market.
In addition, once a wire center is deemed non-impaired, it canot be non-impaired only
for "some CLECs," but not others, and thus no CLEC can then have the right to seek a different
determination in another docket, including an interconnection arbitration. That would simply
make no sense, and would be extremely wasteful of the Commission's (and Qwests) time and
resources. It would also have the perverse result of punishing those CLECs (Integra and 360)
who took the time to participate here, and rewarding those CLECs who did not paricipate.
Finally, all CLECs operating in Idaho have been on notice that such non-impaired wire
center determnations would be binding on them because Qwests petition indicated that it
sought to bind all CLECs in Idao, and thus that whether the Commission's decisions would be
binding on all CLECs would be an issue to be decided in this case. (See Qwest Petition, pp. 3,
10-11.) As such, all CLECs operating in Idaho were on notice that whether the Commission's
decisions here would be binding on all CLECs in the state would be an issue to be decided here.
Those CLECs that chose not to paricipate in this docket canot later have a "second bite of the
apple" to tr to argue that either of these wire centers are stil "impaired." In short, the
Commission's non-impaired wire center and process determinations here should be binding on
all CLECs, and should be of general applicabilty to all CLECs, in the state.
56
QWEST CORPORATION'S POST-HEARNG BRIF
CONCLUSION
For all of the reasons set fort above, Qwest respectfully submits the Commission should
adopt Qwests positions in this docket. Therefore, Qwest respectfully submits the Commission
should (l) declare that the two Idaho wire centers which Qwest presents here are non-impaired
pursuant to the guidelines and standards in the TRRO and the FCC's associated implementation
rules, (2) find that Qwests methodology to count "business lines," and its process to identify
"fiber-based collocators," are reasonable and should be adopted, (3) find that Qwests procedures
to update the non-impaired wire center list in the future as set forth in the multi-state Settlement
Agreement are reasonable and thus should be adopted, (4) acknowledge Qwest s right to charge
CLECs a nonrecurrng charge when CLECs convert from a UN to an alternative Qwest product
or service at non-impaired wire centers, (5) reject the CLECs' arguents seeking a six-month
transition period and advance notice of Qwest seeking non-impairment designations,
57
QWEST CORPORATION'S POST-HEARNG BRIEF
(6) establish that the effective date of the non-impairment is July 27,2008, or 30 days after
Qwest filed its Petition, and (7) rule that its non-impairment determinations are of general
applicabilty and thus binding on all CLECs operating in the state.
Dated: June 15, 2009 Respectfully submitted,
QWEST CORPORATION
M
Alex M. Duare
421 SW Oak Street, Room 810
Portland, OR 97204
[phone]
[phone] (facsimile)
Alex.Duarerægwest.com
Mar S. Hobson
999 Main, Suite 1103
Boise, il 83702
[phone]
mar.hobsonrægwest.com
Attorneys for Qwest Corpration
58
QWEST CORPORATION'S POST-HEARNG BRIF
CERTIFICATE OF SERVICE
I do hereby certify that a true and correct copy of QWEST CORPORATION'S
PRE HEARNG BRIEF was served onthe 15th day of June, 2009 on the following individuals:
Jean D. Jewell
Idaho Public Utilities Commission
472 West Washington Street
P.O. Box 83720
Boise, il 83702
Telephone [phone]
Facsimile: [phone]
jjeweiiavpuc.state.id. us
Weldon Stutzman
Deputy Attorney General
Idaho Public Utilties Commission
472 W. Washington
PO Box 83720
Boise, il 83720-0074
Email: Weldon.Stutzanwuc.idaho.gov
Douglas K. Denney
Integra Telecom, Inc.
6160 Golden Hils Drive
Golden Valley, MN 55416
E-mail: dkdenneyßYintegratelecom.com
Michael Singer Nelson
Associate General Counsel
Suite 160
867 Coal Creek Circle
Louisvile, CO 80027
E-mail: mnelsonræ360.net
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U. S. Mail
-2 Overnight Delivery
Facsimile
.- Email
QWEST CORPORATION
M
Alex M. Duare
421 SW Oak Street, Room 810
Portland, OR 97204
[phone]
[phone] (facsimile)
Alex.Duarteiqgwest.com
Attorney for Qwest Corporation