20030506Petition for Reconsideration.pdf

Conley Ward ISB #1683
GIVENS PURSLEY LLP
277 North 6th Street, Suite 200
O. Box 2720
Boise, ill 83701
[phone]
[phone] (fax)
F\ECE!VED 0FILED
2UO3 MA Y -6 PH~: 32
jJ)'.hU ?,jbLlC
UTILITIES COJ'-II"1JSSION
Morgan W. Richards
MOFFATI, THOMAS, BARRETI, ROCK & FIELDS , CHARTERED
US Bank Plaza Bldg.
10 1 S. Capital Blvd., 10th Floor
Boise, ill 83701
[phone]
[phone] (fax)
Thomas J. Moorman
KRASKIN, LESSE & CaSSON, LLC
2120 L Street, N., Suite 520
Washington D.C. 20037
[phone]
[phone] (fax)
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IDAHO TELEPHONE ASSOCIATION
CITIZENS TELECOMMUNICATIONS
COMPANY OF IDAHO, CENTURYTEL OF
IDAHO, CENTURYTEL OF THE GEM STATE
, )
POTLATCH TELEPHONE COMPANY and
ILLUMINET, INe. CASE NO QWE- T -02-
Complainants
QWEST CORPORATION
Respondent.
PETITION FOR RECONSIDERATION AND CLARIFICATION
Comes Now the Idaho Telephone Association, Citizens Telecommunications Company
of Idaho ("Citizens ), Illuminet, Inc. ("Illuminet") and Intervenor Electric Lightwave, Inc.
ELI"
) (
collectively the "Complainants ), by and through their attorneys of record, and hereby
requests reconsideration and clarification oftwo (2) discrete aspects of the Commission s Order
PETITION FOR RECONSIDERATION AND CLARIFICATION - 1
::ODMA IGRPWISEIBOI- DOM.MTDOCS.BOI - MT2 :509973.
No. 29219 issued April 15 , 2003 in the above-captioned proceeding (the "Order ). For the
reasons stated herein, a grant ofthis relief will help advance, to the fullest extent, the
Commission s conclusion that Qwest unlawfully implemented and applied its intrastate SS7
message rate structure. Further, a grant of this petition should also minimize any effort to
misfocus attention from such conclusion.
INTRODUCTION
The Complainants applaud the Commission s conclusion that the implementation and
application by Qwest Corporation ("Qwest") of its intrastate Signaling System No.7 ("SS7")
message tariff structure was "fundamentally flawed, resulting in SS7 message charges that are
unfair and unreasonable." Order at 11. The Complainants entirely agree with the Commission
that "Qwest did not consider the different payment structures in place for the different types of
traffic (and the signaling that is a necessary part afit) involved in the intrastate domain, nor did
it consider that a variety of arrangements were already in place that were intended to compensate
Qwest for its signaling costs." Order at 11 (emphasis added). Further, the Complainants
wholeheartedly agree with the Commission when it concluded that Qwest should not be granted
a windfall arising from its action in implementing and applying its intrastate SS7 message rate
structure. "The result is that Qwest implemented SS7 message charges that are already
recovered in customer rates on local traffic, including EAS traffic, or pursuant to existing inter-
carrier traffic arrangements.Id.
To ensure, however, these conclusions are not undermined, the Complainants file this
petition with respect to two discrete aspects of the Order. As explained below, one apparently
inadvertent oversight occurred within the Order that could otherwise question the Commission
proper finding that Qwest should not be enriched by its unlawful conduct. Similarly,
PETITION FOR RECONSIDERATION AND CLARIFICATION - 2
: :ODMA IGRPWISEIBOI _DOM.MTDOCS.BOI- MT2:509973. I
Complainants' are concerned that isolated statements within the Order may be used in an effort
to distort the conclusions with respect to the Commission s jurisdiction over Qwest and Qwest'
unlawful conduct. Thus, Complainants respectively submit that granting the relief requested
herein will help ensure the fullest extent ofthe public interest benefits arising from the
Commission s Order.
REQUESTED ACTION
I. RECONSIDERATION OF THE COMMISSION'S "NO REFUND"
CONCLUSION IS WARRANTED AND ENSURES QWEST IS
NOT ABLE TO GAIN A WINDFALL UNDER THE ORDER
As discussed below, Complainants respectfully submit that the following aspect of the
Order is "unreasonable, unlawful, erroneous or not in conformity with the law." Commission
Rules of Procedure, Rule 331.01. Specifically, Complainants request that the Commission
reconsider its conclusion that it need not direct Qwest to issues refunds of its unlawfully assessed
intrastate SS7 message charges. See Order at 20. Unfortunately, this conclusion appears to be
based on an inadvertent oversight of evidence and a reliance only on statements made by non-
Illuminet witnesses. Thus, when this inadvertent oversight is corrected, the Complainants
respectively submit that the Commission should direct Qwest to issue refunds for all unlawfully
assessed Idaho intrastate SS7 message charges paid by Illuminet.
While the Commission is correct that Syringa Networks, LLC, Citizens and ELI have not
paid any charges (see id. at 21 (citing Tr. at 186-430)), Illuminet has, in fact, made such
payments although under protest. Specifically, in May of 2002, Illuminet made a partial
payment under protest to Qwest with respect to Qwest's intrastate SS7 message charges. A
portion of this protested payment, $145 232., was allocated to the very Idaho intrastate SS7
charges assessed by Qwest that have now properly been deemed by the Commission to be
PETITION FOR RECONSIDERATION AND CLARIFICATION - 3
: :ODMA IGRPWISEIBOI - DOM.MTDOCS.BOI - MT2:509973. I
unlawful. This amount is reflected on page 3 of26 of Exhibit 402 (Proprietary Version) and
reflects the total amount (with an $84.00 late fee) of the first three months ofldaho intrastate SS7
message charges identified on page 7 of26 of that exhibit.1 If the Commission were to grant
this request, the attached affidavit of Paul Florack is submitted pursuant to Commission Rule of
Practice 331.03 as the evidence which otherwise corroborates the existing evidence and would be
that evidence which Mr. Florack would testify to at a hearing. Therefore, Complainants note that
reconsideration can and should be afforded them based upon on the briefs and attachment hereto.
Accordingly, the Complainants respectively request the Commission to reconsider its
conclusion not to order a refund of the unlawful charges assessed by Qwest, and to direct such
refunds to be made with due dispatch. As the Order makes clear, Qwest assessed these charges
pursuant to an unlawfully implemented and applied tariff structure, and it is clear that the
Commission s intent is to avoid allowing Qwest to enjoy any windfall from its unlawful acts.
See, e.Order at 11. A grant of this request is, therefore, clearly in the public interest as is a
prompt order directing that such refunds be issued.
Such relief will ensure that Qwest cannot undermine the Commission s proper conclusion
that Qwest invalidly imposed the intrastate SS7 messages charges. Likewise, by correcting this
inadvertent oversight regarding Illuminet' protested partial payment , the Commission can ensure
that Qwest has no opportunity to be rewarded by its unlawful acts by utilizing this inadvertent
oversight as a means to refuse making a refund to Illuminet.
I While Qwest rebuttal indicated that no payment had been made (see Order at 21 citing Tr. at 455), that statement
has no basis in fact for the reasons stated herein. Further, the record is clear that the charges assessed by Qwest for
the physical connection to Qwest's SS7 network - the B-links and ports - continue to be paid by Illuminet See Tr.
at FLORACK TESTIMONY AT 225 (LINES 24-26), 226 (LINES 13-14).
PETITION FOR RECONSIDERATION AND CLARIFICATION - 4
::ODMA IGRPWISEIBOI - DOM.MTDOCS.BOI - MT2:509973. I
II.CLARIFICATION OF THE ORDER IS REQUIRED TO AVOID EFFORTS
TO MISFOCUS ATTENTION FROM QWEST'S UNLAWFUL CONDUCT
Complainants also request that the Commission clarify its Order to ensure the existing
regulatory/operating status of Illuminet does not provide Qwest with an opportunity to misfocus
attention from the preeminent conclusion arising from this proceeding - Qwest has unlawfully
implemented and applied its intrastate SS7 message rate structure. Specifically, Complainants
request clarification that isolated references within the Order to the provision of
telecommunications services" and Illuminet joining Idaho telephone corporations in this
Complaint are not misinterpreted with regard to Illuminet's existing status as a private, non-
common carrier third party provider of SS7 and other services.
Illuminet notes that the Order may be misinterpreted to suggest that Illuminet was being
referenced by the Commission s statement that "as well as a company providing
telecommunications services to those companies in competition with Qwest." Order at 5.
Similarly, the reference to the statement that "the Complainants, including Illuminet, are proper
parties able to file a Complaint under Idaho Code 962-614" (Id.could be misinterpreted to
suggest, by inference, that Illuminet is a "telephone corporation.
As the record reflects, however, Illuminet is not a telecommunications carrier and
provides no services to end users, and on this issue even Qwest agrees. See, e.
g.,
Tr. at
FLORACK TESTIMONY at 203 (lines 1-3) and Tr. at MCINTYTRE REBUTTAL
TESTIMONY at 426 (lines 19-21). Relevant here, as a private, non-common carrier third party
provider of SS7 services, Illuminet does not provide "telecommunications services" to its
carrier/customers nor is it a telephone corporation. See Order at 5. Rather, the arrangements
2 In the event that the Commission finds that reconsideration, rather than clarification, is necessary, Complainants
submit that, for the reasons stated herein, the Order should be reconsidered because, pursuant to the Commission
PETITION FOR RECONSIDERATION AND CLARIFICATION - 5
: :ODMA IGRPWISEIBOI - DOM.MTDOCS.BOI- MT2:509973. I
between Illuminet and its carrier/customers are contractual and are offered solely under contract
to telecommunications carriers. See, e.Tr. at FLORACK TESTIMONY at 203 (lines 3-9),
227 (lines 6-10).
Thus, Complainants respectively request that the Commission clarify its Order to reflect
the fact that Illuminet is a private, non-common carrier third party SS7 provider. Such action is
consistent with the uncontroverted record in this proceeding. A grant of this clarification will
also avoid the potential for using such isolated statements to misfocus attention not only from the
Order s conclusion that Qwest unlawfully implemented and applied its intrastate SS7 message
rate structure, but also the direct impact of that unlawful implementation and application upon
Complainants. Further, the requested clarification does not otherwise disturb any finding or
conclusion of the Commission. For example, Illuminet, as one of the Complainants, voluntarily
subjected itself to the Commission s jurisdiction for purposes of resolving this dispute.
Similarly, Illuminet has joined entities that are telephone corporations in this Complaint and, as
such, all of the Complainants can properly rely upon the Commission s authority to resolve this
dispute pursuant to Idaho Code 962-614. See Order at 5.
CONCLUSION
The Commission s Order reflects rational decision making. Action consistent with the
relief requested herein will advance that result. Accordingly, Complainants respectively request
that the Commission promptly grant this Petition.
Rules of Procedures, the Order is "unreasonable, unlawful, erroneous or not in conformity with the law.
Commission s Rules of Procedure, Rule 331.01.
PETITION FOR RECONSIDERATION AND CLARIFICATION - 6
: :ODMA IGRPWISEIBOI - DOM.MTDOCS.BOI ~T2:509973. I
Respectfully submitted
By: cJ . /J1;1~
kConleyW d ISB #1683
0- GIVENS PURSLEY LLP
277 North 6th Street, Suite 200
O. Box 2720
Boise, ID 83701
[phone]
[phone] (fax)
Counsel for Idaho Telecommunications Association
(J.
Morgan Richards, ISB N .1913
MOFFATI, THOMAS, BARRETI, ROCK & FIELDS
CHARTERED
US Bank Plaza Bldg.
101 S. Capital Blvd., 10th Floor
Boise, ID 83701
[phone]
[phone] (fax)
Counsel for Citizens Telecommunications Company
of Idaho, Electric Lightwave, Inc, and
Illuminet, Inc.
~(.).
LA Thomas . Moorman
() - KRASKIN, LESSE & COSSON, LLC
2120 L Street, N., Suite 520
Washington D.e. 20037
[phone]
[phone] (fax)
Counsel for Illuminet, Inc.
PETITION FOR RECONSIDERATION AND CLARIFICATION - 7
::ODMA IGRPWISEIBOI - DOM.MTDOCS.BOI- MT2:509973.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 6th day of May, 2003, I caused a true and
correct copy of the foregoing PETITION FOR RECONSIDERATION ~D CLARIFICATION to be
served by the method indicated below, and addressed to the followmg:
Mary S. Hobson
STOEL RIVES LLP
101 S. Capitol Blvd., Suite 1900
Boise, ID 83702-5958
Stephanie Boyett-Colgan
QWEST SERVICES CORP.
1801 California St.4ih Floor
Denver, CO 80202
Conley Ward
GIVENS PURSLEY LLP
Post Office Box 2720
Boise, ID 83701
Clay Sturgis
Senior Manager
Moss ADAMS LLP
601 W. Riverside, Suite 1800
Spokane, W A 99201-0663
Lance A. Tade, Manager
State Government Affairs
CITIZENS TELECOMMUNICATIONS OF IDAHO
4 Triad Center, Suite 200
Salt Lake City, UT 84180
Thomas J. Moorman
KRASKIN, LESSE & COSSON
2120 L St. NW, Suite 520
Washington, D.C. 20037
Richard Wolf, Director
Contracts & Regulatory
ILLUMINET, INC.
Post Office Box 2909
Olympia, W A 98507
( ) U.S. Mail, Postage Prepaid
~ Hand Delivered
) Overnight Mail
( ) Facsimile
~ U.S. Mail, Postage Prepaid
( ) Hand Delivered
( ) Overnight Mail
( ) Facsimile
C)Q S. Mail, Postage Prepaid
( ) Hand Delivered
( ) Overnight Mail
( ) Facsimile
qqU.S. Mail, Postage Prepaid
( ) Hand Delivered
( ) Overnight Mail
( ) Facsimile
((9U.S. Mail, Postage Prepaid
( ) Hand Delivered
( ) Overnight Mail
( ) Facsimile
()()U.S. Mail, Postage Prepaid
( ) Hand Delivered
( ) Overnight Mail
( ) Facsimile
(\)-U.S. Mail, Postage Prepaid
( ) Hand Delivered
( ) Overnight Mail
( ) Facsimile
PETITION FOR RECONSIDERATION AND CLARIFICATION - 8
::ODMA IGRPWISEIBOI - DOM.MTDOCS.BOI - MT2:509973. I
F. Wayne Lafferty
L YKAM SERVICES, INC.
2940 Cedar Ridge Dr.
McKinney, TX 75070
()QU.S. Mail, Postage Prepaid
( 5 Hand Delivered
( ) Overnight Mail
( )
Facsimile
Ii!. iliJ
Morgan W. Rich ds
PETITION FOR RECONSIDERATION AND CLARIFICATION - 9
: :ODMA IGRPWISEIBOI- DOM.MTDOCS.BOI ~T2:509973. I
MAY. 5, 2003 9: 35AM VER I SIGN OVERLAND PK , 2545 P, 2/4
BEFORE TIlE IDAHO PUBLIC UTILITIES COMMISSION
IDAHO TELEPHONE ASSOCIATION
CITIZENS TELECO:MMUNICATIONS
COMPANY OF IDAHO, CENTURYTEL OF , IDAHO, CENTURYTEL OF THE GEM STATE
, )
POTLATCH TELEPHONE CaMP ANY and
ILLUMINET mc. CASE NO QWE-02-
Complainants
QWEST CORPORATION
Respondent.
AFFIDAVIT OF PAUL FLORACK
, Paul Florack, do hereby certify and affinn that:
In May of 2002, llluminet, Inc. made a partial payment 1.JIlder protest to Qwest
Corporation ("Qwest") with respect to Qwest's intrastate SS7 message charges
assessed by Qwest prior to that date.
Dluminet continues to pay for the charges assessed by Qwest required for the
physical connections (the B-
links and ports) of the Signaling System No.
network components operated by Qwest and TIluminet.
A portion of the partial payment made to Qwest was allocated to the outstanding
Idaho invoices for intrastate SS7 message charges assessed to Illuminet by Qwest.
LOCATION :9138146501 RX TIME 05/06 '03 09 :27
MAY, 6,2003 g: 37AM VER I SIGN OVERLAND PK , 2545 P, 3/4
The Idaho-specific amount of the protested payment was $145 232.95 (the
Protested Payment"
This Protested Payment is reflected on page 3 of26 of Exhibit 402 (Proprietary
Version) and reflects the total amount (with an $84.00 late fee) of the first three
months ofIdaho intrastate SS7 message charges identified on page 7 of26 of that
exhibit.
The undersigned hereby certifies that the infonnation contained in this Affidavit is true
and accurate to the best of my infonnation and belief.
1Z/~
Signature Io/"03Date
NOTARY CERTIFICATION
State of KANSAS
County of
TO WIT:
0 5 2003, before me, a Notary Public of such State and County,
appeared Paul Florack, who is the individual who executed this Affidavit.
Subscribed and sworn to before me this day of
expires on
O~
; OIOO~_
'7fJ 2003. My Commission
NOi~
:",
~: '~")'ic - State of Kansas
~':1 .
: ,_~;.
\RV D WILSON
My/r-I:'rkpires '0, 0
----~
Notary Publi
LOCATION :9138146501 RX TI ME 05/06 '03 09 :27