20091106Decision Memo.pdf

DECISION MEMORANDUM
TO:COMMISSIONER KEMPTON
CO MMISSI 0 NER SMITH
CO MMISSI 0 NER RED FORD
COMMISSION SECRETARY
LEGAL
WORKING FILE
FROM:CAROLEE HALL
DATE:NOVEMBER 6, 2009
RE:APPLICATION FOR APPROVAL OF AN INTERCONNECTION
AGREEMENT BETWEEN QWEST CORPORATION ("QWEST") AND
SIL VERST AR TELEPHONE COMPANY, INc. ("SILVER STAR"
CASE NO. QWE-09-16.
BACKGROUND
Under the provision of the federal Telecommunications Act of 1996, interconnection
agreements must be submitted to the Commission for approval. 47 U.C. ~ 252(e)(1). The
Commission may reject an agreement adopted by negotiations only if it finds that the agreement:
(1) discriminates against a telecommunications carrier not a party to the agreement; or (2)
implementation of the agreement is not consistent with the public interest, convenience and
necessity. 47 u.S.C. ~ 252(e)(2)(A). As the Commission noted in Order No. 28427, companies
voluntarily entering into interconnection agreements "may negotiate terms , prices and conditions
that do not comply with either the FCC rules or with the provision of Section 251 (b) or ( c).
Order No. 28427 at 11 (emphasis in original). This comports with the FCC's statement that "
state commission shall have authority to approve an interconnection agreement adopted by
negotiation even if the terms of the agreement do not comply with the requirements of (Part 51 J.
47 c.F.R. ~ 51.3.
CURRENT APPLICATION
An Agreement between Qwest and Silver Star, Case No. QWE-09-, was filed
September 3 2009. During its review Staff noticed that the Performance Assurance Plan (PAP),
DECISION MEMORANDUM - 1 -NOVEMBER 6, 2009
or Exhibit K, was intentionally left blank. The PAP provides assurances that Qwest meets its
Service Performance Indicators (PIDs) (Exhibit B), and if Qwest fails to meet its measurements
the PAP provides penalty payments to the CLEC and other companies that enter into an
interconnection agreement with Qwest.
On March 17 2009, the Commission issued its Order granting Qwest's Motion to
Withdraw its Statement of Generally Available Terms and Conditions (SGAT) in Idaho. The
PAP and its performance indicator definitions (PIDs) were exhibits of Qwest's SGA T. The
Commission allowed Qwest to bifurcate the removal of the SGA T from the PIDs and the PAP.
In its Responsive Comments, p. 2, in Case QWE- T -08-, Qwest committed to continue its PAP
and PID obligations if the Commission allowed the withdrawal of the SGAT: "If the
Commission grants Qwest's request to withdraw the SGAT Qwest will continue to make the
PAP (presently designated as SGAT Exhibit K) and the PIDs (Exhibit B) available to
CLECs on the same terms they are available today until Qwest is given authority to
withdraw, amend or substitute an alternative(s) for said PAP and PIDs.1 Emphasis added.
The Commission did not approve the removal, substitution or amendment to the exhibits and in
fact, directed that
, "
Withdrawal of the SGA shall not alter the status and effectiveness of the
exhibits to the SGA T including Exhibit A (price list), Exhibit B (PIDs) and Exhibit K (PAP)"
and maintained that Qwest is to continue to provide the exhibits until such time this Commission
or the FCC upon Qwest's petition , relieves Qwest ofthis obligation. Emphasis Added. The
Commission s directive to include the PIDs and PAP still stands. Since then, Qwest has filed
five interconnection agreements where it has "intentionally left blank" the Performance
Assurance Plan (Exhibit K). In each case Staff contacted the other companies to inquire about
this omission in every case the companies were not aware of the PAP or its function as it relates
to the PIDs. In four out of the five cases, the CLECs subsequently requested that Qwest include
the PAP in the agreement. This has resulted in amended filings by Qwest.
On September 9, 2009, Staff contacted Qwest to inquire as to why the PAP had been
omitted from the Silver Star Agreement. Qwest stated that the company "opted out" of the PAP.
Staff contacted Silver Star to determine if the company was aware of the PAP and its purpose
I Idaho Public Utilities Commission Order No. 30750, Case No. QWE-08-
DECISION MEMORANDUM - 2 -NOVEMBER 6, 2009
and briefly explained how the PAP and the PIDs worked in conjunction with one another?
September 18th Silver Star contacted Qwest and requested that the PID and PAP be included in
its interconnection agreement.
Through the month of October Staff contacted Qwest six times requesting the amended
agreement that Silver Star had requested. On November 4th Silver Star told Staff that a signed
copy was sent to Qwest on October 5th. Silver Star had to prepare a second amendment because
ofthe loss of the first amendment, and that was done on October 30, 2009. Silver Star faxed the
October 30th amendment to Staff. On November 4th Staff contacted Qwest to ask if the faxed
amendment could be used for this decision memo, and Qwest had no objections.
STAFF ANALYSIS
In its final Order No. 30750 this Commission stated that "withdrawal of the SGA T shall
not alter the status and effectiveness of the exhibits to the SGA T including Exhibit A (price list),
Exhibit B (PIDs) and Exhibit K (PAP)." Staff recommends the Commission remind Qwest that
this Order and directive still stand and that the exhibits are to be included in ALL interconnection
agreements until such time as this Commission, or the FCC upon Qwest's petition , relieves
Qwest ofthis obligation.
Staff has reviewed the Amended Application between Silver Star and Qwest and does not
find any terms or conditions that it considers to be discriminatory or contrary to the public
interest. Staff believes that now that the PAP is included the Agreement is complete and
consistent with the public interest as identified in the pro-competitive policies ofthis
Commission, the Idaho Legislature, and the federal Telecommunications Act of 1996.
STAFF RECOMMENDATION
Because the Amended Agreement between Silver Star and Qwest is consistent with the
public interest Staff believes that the Agreement merits the Commission s approval. For future
Qwest filings, Staff recommends that Qwest be reminded that the PAP and PIDs are to be
included with their Interconnection Agreements. If the parties knowingly negotiate terms to
2 The Performance Assurance Plan (PAP) and accompanying Performance Indicator Definitions (PIDs) provides
measures and subsequent penalties for missed measures to assure that Qwest has incentives to maintain high
interconnection standards so that the local service market remains open to competitors. It also maintains parity
between Qwest and the competitive providers.
DECISION MEMORANDUM - 3 -NOVEMBER 6, 2009
exclude the PAP, a statement signed by the CLEC indicating knowledge of the PAP and its
purpose must be included with each Application.
COMMISSION DECISION
Does the Commission agree with Staffs recommendation?
i:udmemos/interconnection agreements/QWE-O9-16 QWEST and SILVER STAR ICA.
DECISION MEMORANDUM - 4-NOVEMBER 6, 2009