20021220PageData Petition for Reconsideration.pdf

JOSEPHB. MCNEAL, d/b/a PAGED AT A
PageData
PO Box 15509
Boise ID 83715
208-375-9844
Appearing Pro Se
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BEFORE THE IDHAO PUBLIC UTILTIES COMMISSION
IN THE MATTER OF THE APPLICATION OF
QWEST CORPORATION AND MCLEODUSA
TELECOMMUNICATIONS SERVICES, INe.
FOR APPROVAL OF AN AMENDMENT TO AN)
INTERCONNECTION AGREEMENT FOR THE)
STATE OF IDAHO PURSUANT TO 47 U.C. ~ )
IN THE MATTER OF THE APPLICATION OF
QWEST CORPORATION AND ESCHELON
TELECOM, INe. FOR APPROVAL OF AN
252(e). (PRIOR CASE NO. QWE-OO-
AMENDMENT TO AN INTERCONNECTION
AGREEMENT FOR THE STATE OF IDAHO
PURSUANT TO 47 U.e. ~ 252(e). (PRIOR
CASE NO. QWE-OO-13)
IN THE MATTER OF THE APPLICATION OF
QWEST CORPORATION AND COV AD
COMMUNICATIONS COMPANY FOR
APPROVAL OF AN AMENDMENT TO AN
INTERCONNECTION AGREEMENT FOR THE)
STATE OF IDAHO PURSUANT TO 47 U.e. ~ )
252(e). (PRIOR CASE NO. USW-99-3)
CASE NO. QWE-O2-
PETITION FOR
RECONSIDERATION
PageData hereby submits its Petition for Reconsideration of the following rulings
finding, and holdings regarding the above case.
In its Findings and Decision the Commission said
, "
This proceeding was not intended to
be an enforcement action, rather it is limited only to whether the agreements now before us
PETITION FOR RECONSIDERATION -
should be approved under the Act." 1 However, the Commission also stated
, "
The Commission
found that because these Applications raised important issues they should not be summarily
approved.,,2 The Commission has not addressed these important issues that the Applications
brought up.
The Commission has purposely limited the scope of or refused any investigation into
Qwest's non-filing of interconnection agreements despite repeated requests. However, one of the
Commission s fiduciary duties is to make sure that Qwest complies with Section 252(e)(1)
wherein it states:
Any interconnection agreement adopted by negotiation or arbitration shall be
submitted for approval to the State commission. 3
The Commission is failing to act under Section 252(e)(5) by failing to require Qwest to
file known interconnection agreements.
If a State commission fails to act to carry out its responsibility under this section
in any proceeding or other matter under this section, then the Commission shall
issue an order preempting the State commission s jurisdiction of that proceeding
or matter within 90 days after being notified (or taking notice) of such failure, and
shall assume the responsibility of the State commission under this section with
respect to the proceeding or matter and act for the State commission. 4
Five Commissions or Commission Staff (Minnesota, Iowa, Arizona, New Mexico, and
Idaho) have determined there is more than enough evidence for the burden of proof to show that
Qwest has not filed all interconnection agreements in Idaho. Contrary to the Commission
statement in their Order No. 29154 in this case 5 it does not take Qwest admitting they broke the
law to rise to the level for there to be enough evidence where the Idaho Commission should
1 Idaho PUC Order No. 29154, Page 82 Idaho PUC Order No. 29154, Page 23 47 US.C. Section 252(e)(1)
47 US.C. Section 252(e)(5)5 Idaho PUC Order No. 29154, Page 9, the Commission stated
, "
Furthermore, PageData has not provided any
evidence that convinces us that considering or granting these requests at this time would be at all relevant to the sole
purpose of this proceeding, whether to approve these agreements under the terms of the Telecommunications Act of
1996.
PETITION FOR RECONSIDERATION - 2
investigate. Even the Commission staff recognized in their comments that "at least one of the
agreements refers to previous agreements that have yet to be filed with the Commission.6 This
alone is reason enough for the Commission to order Qwest to file all verbal and written
agreements (currently in effect or cancelled) that apply to Idaho that have been filed in any other
state. This does not require a long, drawn-out investigation.
Qwest has been found guilty of not filing all interconnection agreements in Minnesota
Iowa, Arizona, and New Mexico. The evidence provided by these state commissions is more
than reasonable grounds for the Idaho Commission, at the very minimum, to order Qwest to file
all previously unfiled verbal and written documents (including currently effective and cancelled
agreements) that are applicable in Idaho and that were provided to other state commissions
during their investigations.
In the Commission s Order No. 29140, the Commission continues to misquote 49 US.
Section 51.809. The Commission said
, "
The ability to pick and choose applies to interconnection
agreements approved by this Commission." 7 49 US.c. Section 51.809(a) of the Local
Competition Order reads:
An incumbent LEC shall make available without unreasonable delay to any
requesting telecommunications carrier any individual interconnection, service or
network element arrangement contained in any agreement to which it is a party
that is approved by !!: state commission pursuant to section 252 of the Act, upon
the same rates, terms, and conditions as those provided in the agreement.
(underline emphasis added)
In essence, this means that any interconnection agreement approved by any state
commission is available for pick and choose in another state under the same rates, terms, and
6 Idaho PUC Order No. 29154, Page 47 Idaho PUC Order No. 29140, dated November 1, 2002 In the Matter of the Joint Petition of Robert Ryder, DBA
Radio Paging Service, Joseph McNeal, DBA PageData and InterPage of Idaho, for a Declaratory Order and
Recovery of Overcharges from US West Communications, Inc.Page 17
49 U.C. Section 51.809(a)
PETITION FOR RECONSIDERATION - 3
conditions. The burden of proof is on the ILEC to show the other commission that 1) the costs
are greater than in the original agreement or 2) it is not technically feasible to provide the
servIce.
The misquote of Section 51.809 by the Commission has bearing on this proceeding
because under the Commission s rationale a carrier cannot "pick and choose" from a multi-state
interconnection agreement that has been strategically filed in one state over another and that has
been unlawfully withheld from each applicable state commissions' review by orchestrated
design.
The Commission s reluctance to investigate Qwest on unfiled interconnection agreements
has given Qwest an economic and procedural advantage by not being in compliance with Section
252(e). By not requiring Qwest to file all applicable agreements, the Commission is encouraging
this continuous practice of price fixing in Idaho.
By not addressing other unfiled interconnection agreements, the Commission has an
excuse for not answering the following questions that may be detrimental to Qwest's interests
and that would contradict orders already issued by the Commission:
When was Qwest obligated to file all unfiled interconnection agreements
applicable to Idaho that have been filed in other states?
When was Qwest obligated to provide a single point of presence in the LATA?
When was Qwest obligated to interconnect at any technically feasible point in
the LATA?
What is the formula for settling disputes relating to obligations set forth in
Sections 251(b) and (c)?
PETITION FOR RECONSIDERATION - 4
These issues have been addressed in interconnection agreements that Qwest tried to keep
secret. Because the Commission has refused to answer these questions and refused to ask Qwest
at a minimum to file agreements that are applicable to Idaho that have been filed in other states
PageData and other carriers have been denied equal protection under the law and due process.
PageData and others have been complaining for over three years that Qwest had unfiled
interconnection agreements and were procedurally blocked from providing that evidence by Rule
408. This evidence has just been released by state PUCs that had the authority to make the
information public. The Commission has continually limited the scope of investigations.
Approval of these six agreements is not enough. Weare demanding that the Commission
specifically address these four questions and order Qwest to file all verbal and written
agreements (including currently effective and cancelled unfiled agreements) that are applicable
to Idaho and that Qwest has filed in other states.This would make the same terms and
conditions available to all carriers through pick and choose or adoption, so some select carriers
do not have preferential treatment by Qwest. This is the most cost efficient way to get Qwest into
compliance with Section 252(e) in the state ofIdaho.
Respectfully submitted this 10th day of December 2002.
PETITION FOR RECONSIDERATION - 5