20030710Intervenors Request for Intervenor Funding.pdf

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JOHN GANNON (ISB #1975)
Attorney at Law
1101 West River, Suite 110
Boise, Idaho 83702
Telephone No. [phone]
Attorney for Intervener Meierotto et al
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BEFORE THE IDAHO PUBLIC UTILITIES COMJ\1ISSION
IN THE MATTER OF THE
APPLICATION OF QWEST
CORPORATION FOR PRICE
DEREGULATION OF BASIC LOCAL
EXCHANGE SERVICES
CASE NO. QWE-02-
REQUEST FOR INTERVENER
FUNDING
CO1v1ES NOW the Interveners Meierotto who pursuant to the Rules of Procedure
of the Idaho Public Utilities Commission 161-170, and specifically Rule 162, IDAPA .
31.01.01 who request Funding as provided therein for the reasonable costs of intervention
in this matter.
(01) Itemized list of Expenses
1. Attached hereto as Exhibit A is an itemized list of expenses and
attorneys time spent in this proceeding and the amounts claimed.
(02) Statement oi Proposed Findings
Interveners propose the following findings by the Commission in connection with
this case:
REQUEST FOR INTERVENER FUNDING Page
Cell phones do not offer the functional equivalent technology because the
technology cannot be reasonably used by small business or residential home phone systems
and therefore wireless is not effective competition..
B. Cell phone transmissions are not reasonably available because they cannot
be reasonably used by small business or residential phone systems and therefore wireless is
not effective competition.
C. Qwest has failed to meet its burden of proof that cell phone technology is
competitively priced because cell phone technology cannot be used by small business
or residential phone systems. Further, there is no evidence of the full value of wire lines
vs wireless in this case.
D. If deregulation is approved, the public interest requires that any deregulation
approval should include mandatory, informal arbitration of billing and service disputes
because the majority of small business and residential customers will have to continue
land line service and Qwest has had serious problems in this area which justify such
protections.
E. Whenever possible, it is in the public interest that the land line and wireless
system should be subject to the same taxes and fees as a matter of public policy so that the
land line system prices are not placed at a disadvantage as a result of governmental action.
In addition, Interveners post hearing memorandum, our witnesses, and evidence
presented and elicited from other witnesses, provide additional suggested findings for the
decision in this case.
(03) Interveners costs claimed are reasonable.
REQUEST FOR INTERVENER FUNDING Page 2
A. Interveners filed 60 pages of prefiled testimony and exhibits.
Each person identified as a witness received approximately 10 interrogatories
from Qwest to answer or a total of around 70 interrogatories ftom Qwest. All were
answered and even those which were clearly outside the issues in this proceeding were
answered after an objection was made.
Interveners participated in the legal hearing on May 22, 2003, and submitted a
7 page memorandum addressing Legislative Intent and other issues not raised directly in
Staffs memorandum.
Interveners and counsel participated in the full two day hearing held
June 4-2003, and submitted a 14 page post hearing memorandum.
In connection with the hearing, counsel reviewed all of the testimony of the 5
witnesses for Qwest and prepared cross examination for Mr. Teitzel; Mr. Souba and Dr.
Lincoln because their testimony related directly to Interveners concerns and issues.
Interveners presented 6 witnesses and two interveners (Meierotto and Moyer)
submitted written comments to the Commission.
Exhibit A fully describes all of the work performed in connection with this
participation.
B. In determining the reasonableness of the attorneys fees Interveners counsel
believes that the requested fee of$12 500 for 149.5 hours of work is reasonable especially
in view of the awards in other cases in which counsel has been involved.
Interveners counsel has been awarded attorneys fees in other cases in
amounts ranging from $100 - $13 0 per hour. Interveners counsel has been awarded fees
REQUEST FOR INTERVENER FUNDING Page 3
at rate of $1 00 or more in a half dozen cases in the past two years and in connection with
a half dozen default judgments.
1. For example on December 6, 2002, Judge Edward Lodge awarded
Interveners Counsel $2000 at the rate of $ 130/hour in connection with a default
Judgement entered against Monogram Credit Card Bank of Georgia. (See Griffiths v
Monogram CV 02-474-EJL at US District Court ofldaho web site)
2. In January, 2001 , Ada County Judge Duff McKee awarded Interveners
Counsel $13 000 at the approximate rate of $11 O/hour in connection with a 3 day jury trial
involving commission disputes. (See Sales v Valley Glass CV OC 99-06152D)
Therefore, Counsels request for an award of attorneys fees at a rate of around
$90/hour is reasonable and probably very low.
(04) Interveners would not have participated unless they were
represented by counsel who was willing to put together the issues and evidence.
Interveners and their witnesses would not normaUy have participated, because realistically,
the amount of money at stake for them far exceeds the expenses and time they have to
spend on a case such as this. For example, Gary Neal points out how unhappy he and his
wife were with the outrageous Zero Plus Dialing charge of $17.10 for a 4 minute phone
call, and how realistically they had no choice but to pay it. This is true for ,intervening in
a case such as this also, but in this case an attorney was willing to put together the work
and take the risk of getting paid if the Commission felt the attorney and his clients
contributed as required by the rules.
There is no way that the interveners could afford to pay for and hire an attorney and
REQUEST FOR INTERVENER FUNDING Page 4
there is really no way to present their views without one.
(05) Interveners positions differed from the Staffs in many respects:
A. In the original Petition to Intervene, which was granted by the Commission,
Interveners pointed out that they could not use the technology especially for extension
phones. This has been the consistent theme of Interveners evidence throughout this case.
Interveners presented 6 witnesses who focused primarily on the impossibility of
using wireless technology in their business or residences. Interveners presented witnesses
who had hands on involvement with wireless/wireline technology and were familiar
with the needs and uses of wireless/wireline in this area. Each witness was familiar with
the needs of a particular industry or profession, and interveners submit, know their own
needs and what works better than any of the expert witnesses who testified. Several
witnesses presented local lists of those in their business showing that land lines were the
overwhelming choice for their business. Their testimony was largely unrefuted.
B. Interveners believe their testimony was more credible and persuasive than
evidence contained in much of the testimony that was based upon double hearsay and
outside the personal knowledge of the witness. Some of the "expert" witnesses strayed
ITom their area of expertise when discussing double hearsay in newspaper articles and
quoting ITom persons who mayor may not have had credentials. Even Staff's witness Ben
Johnson, for example, is an economist, and probably not as qualified as an expert on
ergonomics, cell phones causing cancer and the specific communication needs of a Boise
Idaho small business person, even though his summary testimony touched on these issues
and most of his testimony was very valuable.
REQUEST FOR INTERVENER FUNDING Page 5
Qwest witness David Teitzel made general statements about "misconceptions" by
interveners regarding wireless technology, but he could not direct interveners to
reasonably available products which would allow them to use wireless technology for their
needs as interveners defined them, not as Qwest or even Staff defined them.
C. Interveners did not address or even become involved in a principal issue
presented by Staff and Qwest concerning competitive pricing and the comparison of
wireless to wireline costs. For one thing Staff did an excellent job of dealing with
this issue and there was no reason for interveners to duplicate that work.
But in addition, Interveners believe that even if wireless technology was ITee, it
cannot be used by them and therefore it is not competitively priced and to that extent the
price doesn t matter. And, Interveners believe that any price comparison must include a
value for the services that the wireline provides, and that wireless does not provide. This
was not presented by Qwest.
D. Legal issues: Interveners agree with Staff that "local service" means local
service and not something else. But Interveners did not spend time duplicating
Mr.Stutzman s excellent brief, or responding to Ms Hobsons excellent brief, because Staff
was completely covering this issue.
Interveners did point out at the Hearing on May 22, 2003, though, that for
purposes of evidence presented at the June 4-5 Hearing a decision on this issue didn
matter because the evidence would probably be admissible on the "competitive price
issue or even the "functional equivalent" issue, and the Commission did decide to reserve
its ruling. Interveners also did not support Staffs request to vacate the June 4-5 Hearing.
REQUEST FOR INTERVENER FUNDING Page 6
Interveners disagreed with Staff's interpretation of "reasonably available.
presented evidence that the technology cannot be used, so therefore how can a "voice to
voice" transmission, or even "local service" be reasonably available? Interveners believe
the term "reasonably available" is much broader and more inclusive than the Qwest
position, which Staff really didn t challenge.
E. Interveners focused on billing dispute issues several times throughout the
Hearing, and also brought up the tax/fee equity issue between cell phones and land lines.
F. Interveners also focused on the conjunctive nature of "small business and
residential" in the statute. Staff did not really focus on the fact that small business in
particular cannot possibly use cell phone technology to replace land lines. When Qwest
presented such evidence through Dr.Lincoln, Interveners pointed out the lack of follow up
questions and a serious methodology problem in the survey of small business. Staff and
their witnesses spent little time on the Small Business customer, and in the end
Interveners provided evidence that very few 1-5 line customers can replace their land lines
or even reduce their land line service, in favor of cell phone technology. Interveners were
the only party to point out that it didn t matter how much their 1-5 lines cost: They
have to have them.
(06). Interveners position addressed the phone system needs of small business and
residential customers and the fact that not only would wireless technology not work for
them, it would not work for others in their class either. Interveners position was not
narrowly focused just on interveners and their witnesses. It would be impossible to do
that even if interveners wanted to do so.
REQUEST FOR INTERVENER FUNDING Page 7
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(07). Interveners believe they represented the small business (1-5 lines) class of
customer and to a lesser extent, the residential class of customer.
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Dated this 9th day of July, 2003
REQUEST FOR INTERVENER FUNDING Page 8
Date
1/10/03
1/15/03
3/19/03
3/19/03
6/4/03
6/27/03
6/2703
12/19/02
12/20/02
EXPENSES
Description
Copies of Petition to Intervene (16 copies at 16 pages each)
256 copies at 5 cents/page
Paralegal bill for gathering literature/prices from all cell phone
companies in Boise area (3 hours at $17 /hour)
Copies of Pre Filed Testimony (19 copies at 60 pages each)
1140 copies at 5 cents/page = $57.
Postage 7 sets at $2.44
Testimony Enlargements for Hearing at Kinkos
Copies of Post Hearing Memorandum 375 pages x 5 cents = 18.
15 pages x 8 for Commission
15 pages x 8 for parties
15 pages x 9 for clients and witnesses
Postage 8 copies at 83 cents each (parties)
Postage 8 copies at 83 cents each (clients and witnesses)
TOTAL EXPENSES:
ATTORNEYS TIME
Initial review of application and Dr. Lincoln Testimony (1.25)
Read application & consider again, research local rate Deregulation
EXIllBIT A TO INTERVENER FUNDING REQUEST Page
Amount
$12.
51.
57.
17.
14.47
18.
13 .28
$184.
12/21/02
12/22/03
1/02/03
1/03/03
1/04/03
1/06/03
1/10/03
1/13/92
1/14/03
1/15/03
including review other jurisdictions status on internet (12:15-1:15) (1.0)
(2:30 - 3 :45) (1.25)
Review local rate deregulation issues in Calif on internet at various
Websites; Revew Portland Oregonian article and get more background
(1:30 - 4:00) (2.
Review Souba, Shooshan & Teitzel testimony and consider whether
cell phones can be used (11: 15 - 1 :00) (1.75)
Discuss parameters of intervening with clients (.3) Consider
multiple member households issues. T/C Cricket representative (.75)
T/C & review price comparison information (1.0)
Further review of database information for articles on deregulation
and competition for local phone service; locate Boston Globe article
for background (12-1) (1.0); Review Michigan Utility Comm
Website including orders and information; Locate Detroit Free
Press article; Paralegal advises of Wall Street Journal article
(1:15-3) (1.75)
Research on Petition to Intervene and requirements (.75)
T /C attorney who has done so before and figure out
competition issue - followup on Detroit Free Press
article and check with Commission to see if there are any
public interveners yet and review paralegal work (1.75)
Show materials to clients (.2) T/C PUC Draft and finalize
affidavit & petition and include Detroit Free Press Article and
WSJ Article (1-1:45) (3-4) (1.75)
R/R article in Statesman (.1) T /C Free Press to locate author and
locate possible expert (.2) Organize file; reread Petition to Intervene
(1.0)
T/C Free Press personnel who will have author call me (.
T/C Mary Hobson re: confidentiality & participation (.
EXHIBIT A TO INTERVENER FUNDING REQUEST Page 2
1/21/03
1/30/02
2/19/03
3/04/03
3/5103
3/07/03
3/14/03
3/15/03
3/16/03
3/17/03
3/18103
R/R interogatories and generally the responses and particularly
the survey methodology material (1.0)
R/R & sign Protective Agreement and send to Joe Miller (.4)
Locate and review census data for Boise MSA and research Fax usage
research (1.0)
Discuss affidavit w/Neal, review IPUC rules and discuss procedure (1.25)
TIC Steve Chattin & interview and send article (.5); Try to locate CPA (.5)
Try to locate person with wireless sales knowledge (7-8) (1.0)
Review, organize & prep Neal & Chattin Testimony (1.5)
McManamon Testimony; review law and applicable statutes thoroughly
prepare outline of proof required and legal issues; consider data
transmission issue and note phone feature on fax machines; review
carefully & organize Teitzel testimony (8 - 11 :20) (3.4) Review Int
Mountain Gas SC case and figure out dismissal standard (12-
(1.0); Work on Phone book issues (.75) Review Rules of Procedure
(3: 15-4: 15) (1.0); Consider requirements for prefiled testimony (4: 15-
(4:30) (.25)
Interview and review witness testimony (.75) Neal affidavit & Ex
T/C Commission secretary (9-1) (4.
Work on McManamon; TIC review Qwest testimony and exhibits
(11-2) (3.0) Review Exhibit rule & Judicial Notice (2:30 -3: 15) (.75)
TIC Joel Sales (.2) TIC Steve Chattin (.1)
Continue prep of testimony; tax equity issue &
review cell phone 911 tax issue (9:30 -12:15) (2.75)
Prep finalize McManamon; Chattin; corrections as requested
figure out issues; Meet with Chattin again (4.5) Continue preparation
(4-5) (1.0); Hearing Preparation (6:30 -8:30) (2.
Work on Boyce; Review MLS list; T/C Commission regarding prefixes;
Conference Meierotto; 3 TIC's witnesses; Review Exhibit rule again;
Work on exhibits and witness testimony (10-12) (2.0); 1:30- 6:30 (5.
EXHIBIT A TO INTERVENER FUNDING REQUEST Page 3
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3/19/03
4/16/03
4/1 7/03
4/18/03
4/22/03
5/20/03
5/21/03
5/22/03
5/23/03
5/24103
5/25/03
5/26/03
5/28/03
Work with other witnesses (7:45 - 9) (1.25)
Interview and Meierotto again regarding status; exhibit and testimony
work; organize and decide on exhibits; conference Chattin and revise
again; organize and finalize and supervise filing (8:30 -2); (5.5) 2:45 -
(1.25)
Work on discovery requests from Qwest (1.
Work on discovery; Review Ben Johnson and his testimony (3
Prep for Hearing and finish interrog responses (9-12) (2.5) Further
preparation & Discovery (1-3) (2.0) Prep for hearing; Finish Chattin
discovery issues (4-5) (1.0)
Read & review rebuttal testimony 11-12:30 (1.5)
Continue Shoo shan & Lincoln (1:30 - 2:30) (1.0)
Review Memorandum; consider; Review statutes; Review
previous research; write, rewrite and research and finalize
memorandum (9-11); 12:15-3:30) (5.25)
Outlme argument and review briefs again (10-11 :45) (1.75)
Prep for hearing (8:15 -10) (1.75) Hearing (10-11:15) (1.25)
Prep for 6/4 hearing (1-2) (1.0)
Work on Lincoln survey and testimony (2.0); Deal with Ascendent
(1.0)
Prep for hearing (9: 15 -1) (3.75)
Prep for hearing - Dr. Lincoln testimony (2.0); Souba read and
organize (2.
Review all documents in first Discovery response; Consider issues and
analyze survey (8:30 - 11 :30) (3.
Prep for hearing; survey, Ascendent issues; Rev rebuttal testimony
TIC regarding procedure at hearing (9:45- 11 :30) (1. 75) 12:30 - 2: 15
EXHIBIT A TO INTERVENER FUNDING REQUEST Page 4
L. .,
5/29/03
5/30/03
5/31/03
6/02/03
6/03/03
6/04/03
6/05/03
6/24/03
6/25/03
6/26103
6/27/03
6/30/03
(1.5); 3:45-4:15 (.5)
Review and consider all exhibits filed in initial filing (2.25)
Work & prep for hearing (2.
Qwest Witness and quotes (3.75) RID Objection to Teitzel testimony
(1.25)Prep (3-5) (2.0);
Preparation for Qwest witnesses (5.5) Review Hart & Johnson
generally (1.5)
Research cell fax machines; Neal surrebuttal; Qwest witness prep;
Organize new Exhibits (7.
Hearing preparation (6.5) Prep for hearing (2.75)
Prep for hearing; Exhibits; Blow ups; Organize (6:30 -9) (2.
Hearing (2.5) Organize (.5) Hearing (3.75) Contact witnesses
and organize for 6/5 (1.0)
Prep for hearing (1.75) Hearing morning (2.5) Prep for hearing
& organize (.75) Hearing afternoon (.75) Organize materials
and ideas for posthearing brief (2.
Work on brief; write intervener summary part (8:30 -11)(2.5); Review
transcript at PUC (1 :30 -4) (2.
Organize and write brief; (9:30 -12:15); (2.45); Continue to
organize and write brief (7-9PM) (2.
Work on Brief (4.
Write final parts of brief and finalize; check citations (11 :30 - 2:00)
(2.
R/R Qwest and Staff briefs (1.0)
TOTAL ATTORNEYS HOURS:
ATTORNEYS FEE REQUESTED:
EXHIBIT A TO INTERVENER FUNDING REQUEST Page 5
149.
$12 500
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY THAT ON THE 9th DAY OF JULY, 2003 , I
SERVED THE FOREGOING PLEADING IN CASE NO QWE- T -02-25. BY MAILING
A COpy TIIEREOF, POSTAGE PREP AID, (UNLESS OTHERWISE INDICATED) TO
THE FOLLOWING:
(personally Served)
MARY S HOB SON
STOEL RIVES LLP
SUITE 1900
101 S CAPITOL BLVD
BOISE, ID 83702
CONLEY WARD
GIVENS PURSLEY LLP
277 N 6th ST, SUITE 200
PO BOX 2720
BOISE, ID 83702-2720
DEAN J MILLER
McDEVITT & MILLER LLP
PO BOX 2564
BOISE, ID 83701
(personally Served)
WELDON STUTZMAN
DEPUTY ATTORNEY GENERAL
IPUC
PO BOX 83720
BOISE, ID 83720-0074
MARLIN D ARD
WILLARD L FORSYTH
HERSHNER, HUNTER, ET AL
180E 11th AVE PO BOX 1475
EUGENE, OR 97440-1475
CERTIFICATE OF SERVICE
ADAM L SHERR
QWEST
1600 7th AVE, ROOM 3206
SEATTLE, WA 98191
CLAY R STURGIS
MOSS ADAMS LLP
601 W RIVERSIDE, SUITE 1800
SPOKANE, W A 99201-0663
BRIAN THOMAS
TIME WARNER TELECOM
223 TAYLOR AVE NORTH
SEATTLE, WA 98109
DEAN RANDALL
VERIZON NORTHWEST INc.
17933 NW EVERGREEN PKWY
BEAVERTON, OR 97006-7438