20030521Complainants' Opposition to Qwest's Cross Petition.pdf

Conley Ward ISB # 1683
GIVENS PURSLEY LLP
277 North 6th Street, Suite 200
O. Box 2720
Boise, ID 83701
[phone]
[phone] (fax)
F:::CEIVED
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2003 MAY 20 PM ~: 32
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UTILIT !l:S CUtlMISSION
Morgan W. Richards
MOFF A TT THOMAS
US Bank Plaza Bldg.
101 S. Capital Blvd., 10th Floor
Boise, ID 83701
[phone]
[phone] (fax)
Thomas J. Moorman
KRASKIN, LESSE & COSSON, 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-02-
Complainants
COMPLAINANTS' OPPOSITION TO
QWEST'S CROSS-PETITION FOR
RECONSIDERATION OF ORDER NO.
29219
vs.
QWEST COMMUNICATIONS, INC.
Respondent.
Complainants Idaho Telephone Association ("ITA"), 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 hereby
submit this Opposition to the May 13 2003 Qwest's Answer to Complainants ' Petition for
Reconsideration and Clarification and Cross Petition for Reconsideration of Order No. 29219
Cross-Petition ). For the reasons stated herein, Complainants respectfully submit that the
Idaho Public Utilities Commission (the "Commission ) should grant the relief requested in the
May 6, 2003 Petition for Reconsideration and Clarification filed by the Complainants in this
proceeding (the "Complainants' Petition
Introduction
The record evidence in this proceeding well exceeds 500 pages. Qwest, alone, has filed
over 100 pages of testimony, a significant number of Exhibits, and over 85 pages of post-hearing
legal briefs prior to the issuance of Order No. 29219 (the "Order ). Yet, in a clear effort to divert
attention from the Commission s findings and conclusions that Qwest has acted unlawfully in
implementing its intrastate Signaling System No.7 ("SS7") signaling message rate structure in
Idaho, Qwest continues to claim that additional evidentiary hearings are required. Qwest'
current conjecture aside, no new facts are present that should deter the Commission from
dismissing Qwest's Cross-Petition outright, and granting the Complainants' Petition in its
entirety.
In its Cross-Petition, Qwest does not deny that a protested partial payment was made, nor
could it since that fact has been part of the record evidence contained in an invoice Qwest sent to
Illuminet. See Exhibit 402. Based on an apparent inadvertent oversight of the Commission in
finding that refunds were not required because the disputed charges had not been paid (see
Order at 20-21), the on-the-record fact that a protested payment had been made is the only fact
necessary for the Commission to correct this oversight. Moreover, the payment by Illuminet
1 In the Complainants ' Opposition to Petition for Reconsideration and Motion for Stay of Order No. 29219 , Case
No. QWE-02-, filed May 13 2003 (the "Opposition ), Complainants have already addressed many of the same
does not affect Illuminet's status as transport agent for its carrier/customers, an issue already
resolved on the record evidence. Accordingly, no further fact finding is necessary on this aspect
of the Complainants ' Petition.
The second aspect ofthe Complainants' Petition - the status of Illuminet as a non-
telecommunications carrier - merely requires affirmation by the Commission. As such, no
further evidentiary hearing is necessary with respect to this aspect of the Complainants' Petition
- the record already includes the uncontroverted facts required for the Commission to take this
action. See e.Tr. at pp 203 and 426; see also Complainants Petition at 5-
Thus, Complainants respectfully request that the Commission grant their requested relief
promptly and deny Qwest's Cross-Petition?
The Qwest Cross-Petition should be Dismissed in Its Entirety
Qwest's Attacks on the Commission s Jurisdiction Continue to be Without
Merit.
Qwest's continued attacks on the Commission s jurisdiction to resolve this Complaint are
without merit. Qwest erroneously suggests that Illuminet's status as a non-telecommunications
carrier leads to a conclusion that SS7 signaling is not a telecommunications service and thus the
Commission is without jurisdiction to resolve the Complaint pursuant to Section 62-605(5) of the
Idaho Code. See Cross-Petition at 8-9. Qwest's theory cannot be reconciled with the record
facts. The SS7 signaling messages at issue in this proceeding are generated only by
telecommunications carriers - Qwest and the carrier/customers of Illuminet. See Tr. pp. 328-
issues raised in the Qwest Cross-Petition that were initially raised in Qwest's petition for reconsideration of the
Order. Rather than burden the record, Complainants incorporate their Opposition herein by reference.2 Qwest now confmns Complainants ' position that Qwest has waived any right to object to the Commission s Order
with regard to SS7 message charges associated with local and Extended Area Service ("EAS") end user traffic. See
Opposition at 4-6. Qwest recognized that its proposal was intended "to eliminate message charges associated with
local and EAS traffic. . . " (Cross-Petition at 8), and no legal objection was raised by Qwest regarding refunds with
respect to any aspect of the underlying unlawful charges that have been paid.
330. Illuminet generates none of these SS7 messages; it only transports those messages as the
transport agent of its carrier/customers.
Similarly, Qwest's conveniently narrow interpretation of Section 62-614 to deprive the
Commission of jurisdiction to resolve this Complaint disregards the fact that Citizens and other
IT A members are telephone corporations. Qwest cites to no authority to suggest that Section 62-
614 prohibits other aggrieved parties from joining such Complaint. Qwest also conveniently
fails to explain how its theory can be reconciled with the full panoply ofldaho statutes that grant
the Commission the authority to resolve the instant dispute. See Order at 3-8; see also Idaho
Code Sections 62-605(5), 62-608, 62-609(2) and (3), and 62-615.4 For example, with respect to
ELI in particular, the Commission had approved the interconnection agreement at issue, and
Qwest's unlawful assessment of SS7 message charges pursuant to the Catalog effectively altered
the terms of the agreement. See e.Order at 11. Section 62-615 and 47 US.C. Section 252
clearly provide the Commission with the authority to resolve this aspect of the Complaint.
Apparently, Qwest continues to harbor the misassumption that Illuminet is the
customer" ofthe SS7 messages under the Catalog. This assumption, however, was rejected
outright in the Order. Again, the record demonstrates that the SS7 messages at issue are
generated by either Qwest or by an Illuminet carrier/customer, and the Commission has
jurisdiction over these entities and, in particular, the agreements that establish whether and how
3 This has been demonstrated by the Complainants and summarized by them in their Post Hearing Brief in this
proceeding. See Complainants' Post Hearing Brief, Case No. QWE-02-, filed January 31 2003 (the "Post
Hearing Brief') at 19-22. Rather than burden the record, the Post Hearing Brief is incorporated herein by reference.4 As demonstrated by its statements found on page 7 of the Cross-Petition, Qwest's arguments that the Commission
lacks jurisdiction are simply a "house of cards." Presented as if it were a fact (which it is not), Qwest states that
( s Jince the Commission lacks jurisdiction to hear or resolve any dispute between Illuminet or ELI under section 62-
614, the question that immediately presents itself is, what claims, if any, remain for the Commission s resolution?"
Cross-Petition at 7. Since Qwest has not demonstrated that the Commission lacks jurisdiction under Section 62-614
to resolve the Complaint, then what it believes is "immediately present( edJ" is irrelevant. Even if Qwest were
correct, however, Qwest has failed to address the remaining jurisdictional bases articulated by the Commission at
pages 6-8 of the Order. Thus, the Commission need not waste effort engaging in Qwest's debate-styled arguments.
AffIrming the Order s conclusions with respect to Commission s jurisdiction accomplishes the same result.
proper charges are to be assessed for intrastate SS7 signaling associated with (and an integral
component of) the end user traffic. See Order at 3-
To be sure, there is a strong presumption that jurisdiction exists in a case where a
contrary finding would deprive the Complainants of the Commission s expertise and a
meaningful forum in which to seek a redress of grievances. See e., State ex rei. Spire
Northwestern Bell Telephone Co.233 Neb. 262 283445 N.W.2d 284 (1989). Absent the
application of the very same general property right and due process principles expressed in State
ex rei. Spire the illogical result of Qwest's misplaced theories would be to deprive the
Commission ofthe opportunity to ensure that a telephone corporation subject to its jurisdiction
(i.e. Qwest) is not able to reap an ill-gotten windfall arising directly from its unlawful conduct.
Accordingly, for all ofthese reasons, and those previously determined by the Commission
Qwest's jurisdictional arguments are without merit and should be dismissed.
The Fact that Illuminet Paid Qwest Under Protest is Not a New Fact and is
Not Inconsistent with the Basic Conclusions of the Order.
Qwest attempts to make much of the fact that Illuminet made a disputed payment. See
Cross-Petition at 3-5. That is no new fact. The unlawful charges were invoiced by Qwest to
Illuminet (see e.Exhibit 402), and the record is clear that charges are passed through to the
Illuminet carrier/customer. See e.
g.,
Tr. pp. at FLORACK TESTIMONY at 227 (lines 4-10) and
Citizens Telecommunications Company ofldaho s Responses to Qwest's First Set of Production
Requests, Exhibit B. Despite Qwest's incorrect claim to the contrary (see Cross-Petition at 7-8),
nothing has changed. The relevant facts are already known -- that a protested payment was made
by Illuminet on behalf of its carrier/customers (see Exhibit 402), that the charges are subject to
the flow-through provisions of the contracts between Illuminet and its carrier/customers (see Id.);
that the charges remained under dispute (see id.Tr. pp. at FLORACK TESTIMONY at 206
(lines 1-5)), and the Commission has properly found that Qwest engaged in unlawful, and
unreasonable conduct. See e.
g.,
Order at 11 ("The simple logic Qwest used to implement its
Access Catalog revisions was fundamentally flawed, resulting in SS7 message charges that are
unfair and unreasonable.) Thus, Qwest's tortured efforts to convince the Commission that
additional factual inquiries are necessary in order to afford Qwest a "second bite of the apple
are baseless and can and should be readily dismissed.
3. Qwest has Inaccurately Portrayed the Complainants' Positions and of the Record.
Finally, and unfortunately, Qwest now expands its baseless claims by fabricating statements
and so-called facts that simply do not exist.
A. Qwest erroneously states that "Qwest and Complainants agree that the Order
should be reconsidered by means of an additional evidentiary hearing to explore
the facts relating to the course of business between Qwest and Illuminet." Cross-
Petition at 5 (emphasis added).
Complainants have made no such statement. Complainants' Petition stated-
(RJeconsideration can and should be afforded them based. . . on the briefs and attachments
hereto." Complainants' Petition at 4. The Complainants ' Petition merely corroborated the fact of
a protested partial payment by Illuminet that, contrary to Qwest's rhetoric, was not "exceedingly
obscure." Cross-Petition at 4 n.4. The fact was demonstrated in an actual invoice prepared and
sent to Illuminet by Qwest -- where the partial payment was noted. See Exhibit 402, page 3 of
26; see also Complainants' Petition at 3-
B. Qwest wrongly states that "As Illuminet concedes, SS7 signaling is not offered to
the public." Cross-Petition at 9.
Neither Illuminet, nor any ofthe Complainants, ever made such concession and Qwest
did not cite any such statements by any of the Complainants. The fact that Qwest attempted
(albeit unlawfully as found in the Order) to "unbundle" its rate structure within a generally
available Catalog service offering directly contradicts Qwest's statements. The record and the
Order s explanation ofthat record are clear that SS7 signaling is an integral component of the
end user service - voice and data traffic - which are offered by Qwest and by the Illuminet
carrier/customers to the public. As the Commission properly found
, "
Qwest did not consider the
different payment structures in place for the different types of traffic (and the signaling that is a
necessary part of it) 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).
C. Qwest improperly states that "third party providers then sell the signaling to
their customers. . ..(Id.
This statement is contradicted and directly refuted by the record that demonstrates
Illuminet does not generate the SS7 messages the charges for which are at issue in this
proceeding, and Qwest agreed. The record is clear that the SS7 messages charges at issue are
passed through by Illuminet to its carrier/customers and are not "sold" to them. Moreover, and
as already demonstrated in the record Illuminet does not "sell" SS7 messages; Illuminet is the
transport agent of its carrier/customers thus enabling the Illuminet carrier/customer and, in this
case, Qwest, to initiate the required SS7 messages necessary to set-up and tear-down end user
voice traffic.
Conclusion
The time has come for Qwest to admit its unlawful conduct, comply with the Order
directives and end this litigation. Accordingly, for the reasons stated herein and the
Complainants' Petition, Complainants respectfully request that the Commission grant the relief
they request, and dismiss in its entirety the Qwest Cross-Petition.
Respectfully submitted this 20th day of May, 2003.
By:W o--Il..r2 M. '-oJ Conley War SB # 1683
GIVENS PURSLEY LLP
277 North 6th Street, Suite 200
O. Box 2720
Boise, ID 83701
[phone]
[phone] (fax)
Counsel for Idaho Telecommunications Association
~~.
Morga . Richards, ISB N&"1913
MOFFATT, THOMAS, BARRETT, ROCK & FIELDS
CHARTERED
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.
-:T,
Thomas J. Moorman
KRASKIN, LESSE & COSSON, LLC
2120 L Street, N., Suite 520
Washington D.e. 20037
[phone]
[phone] (fax)
Counsel for Illuminet, Inc.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 20th day of May, 2003, I caused a true and
correct copy of the foregoing COMPLAINANTS' OPPOSITION TO QWEST'S CROSS-
PETITION FOR RECONSIDERATION OF ORDER NO. 29219 to be served by the method
indicated below, and addressed to the following:
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 TELECOMMUNICA nONS 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.e. 20037
Richard Wolf, Director
Contracts & Regulatory
ILLUMINET, INC.
Post Office Box 2909
Olympia, W A 98507
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F. Wayne Lafferty
L YKAM SERVICES, INC.
2940 Cedar Ridge Dr.
McKinney, TX 75070
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;Iz ~VJ'~r,
Morgan W. Ri ards