20030826Intervenors Response to Motion to Reopen.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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UTIL j CJ SSION
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE
APPLICATION OF QWEST
CORPORATION FOR PRICE
DEREGULATION OF BASIC LOCAL
EXCHANGE SERVICES
CASE NO. QWE-02-
INTERVENER RESPONSE TO
QWESTS MOTION TO RE-OPEN
THE RECORD
Interveners Meierotto oppose Qwests Motion to Re-Open the Record, which
motion has been apparently made for the limited purpose of receiving a modified
deregulation proposal contained in the Supplemental Testimony of James Schmit.
Procedure
Unfortunately the moving party has not cited any rule or legal basis for making this
unusual motion Interveners are aware that on rare occasions such motions are made
when, for example, there is a change in the law as a result of an Appellate Court decision
which affects the evidence that was considered. But in this case Qwest has asked that the
relief sought in the original complaint be changed or essentially "amended" at a very late
date without citing any new decision, statute or other change in circumstances.
Amending the Complaint can occur even after the evidence has been received (See
IRCP 15), however, such an amendment must be based upon the evidence presented and
usually is made so that the legal theory conforms to the evidence presented.
INTERVENERS RESPONSE TO QWESTS MOTION TO REOPEN Page 1
In the case before this Commission the proposed "amendment" does not arise out
of evidence presented on June 4-5. The proposal in Mr. Schmits Motion was never even
raised or considered by the parties or the Commission, and this creates some serious issues
regarding cross examination and due process for the Intervener.
The proper procedure for putting this proposal before the Commission is, at best
to move to Amend the original Application and substitute this proposal as a new
Application, withdrawing the original Application.
Interveners would probably not oppose Qwest if Qwest substituted this new
proposal for the original one, and withdrew the original application. Then a new hearing
could be held to consider this proposal, with the previous evidence and testimony being a
part of the record. In fairness to the parties, Qwest should bear the costs of any
additional hearing.
Due Process
An even more significant problem raised by the Supplemental Testimony is one of
due process. The proposed testimony is not subject to cross examination, or to the
presentation of evidence by the Intervener. Under the Commission Rules we have every
right to cross examine the witness and to present evidence bearing on the new proposal.
For example, counsel would like to know more about the South Dakota decision
referenced in the testimony and counsel would like to know what evidence Qwest has that
in 5 years or so it will be technologically possible to address the serious cell phone
limitations discussed at the Hearing held in this matter. Can cell phones, with their
different technology from land lines ever be adapted for extension phone or office system
INTERVENERS RESPONSE TO QWESTS MOTION TO REOPEN Page 2
use? Interveners don t know at this point, and we need time and discovery to find out.
The nature and reliability of such evidence would shape and even possibly modify our
position.
Conditional Approval
Interveners believe that the statute, while written clearly, might well contemplate
conditional approval of an application such as Qwests. In other words, if there are
safeguards for those who do not have competition, then the legal elements (discussed in
earlier briefs) of effective competition are easier to support.That is why we have asked
for an informal arbitration proceeding to be introduced in the event that deregulation is
ever granted. Qwest seems to agree that conditions to any approval can be granted.
Qwest is requesting different relief which makes deregulation more likely, then Intervenors
want to present evidence of the Better Business Burean s arbitration program as well as
recent Court decisions and arbitration proceedings in Arizona and California. Sid
Meierotto would like to present additional evidence as well as other witnesses who have
come to our attention.
Conclusion
Admission of the proposed testimony is not supported by any Rule of Procedure
and raises serious due process issues which cannot be resolved without a new hearing and
a new discovery and briefing schedule. Qwest could withdraw its original Application and
substitute this new proposal, but again, a new hearing and discovery schedule would be
required and Qwest should bear those expenses.
Intervenors do commend Qwest and Mr. Schmit for making this new
INTERVENERS RESPONSE TO QWESTS MOTION TO REOPEN Page 3
proposal in an attempt to address Intervenors concerns. It is a step in the right direction
although perhaps not a big enough step, but unfortunately it has been proposed long after
parties have expended a tremendous amount of time and effort evaluating and confronting
the original proposal in this case.
Dated this 26th day of August, 2003
INTERVENERS RESPONSE TO QWESTS MOTION TO REOPEN Page 4
CERTIFICATE OF SERVICE
I HEREBY CERTIFY THAT ON THE 26th DAY OF AUGUST, 2003 , I
SERVED THE FOREGOING PLEADING IN CASE NO QWE-02-25. BY MAILING
A COpy THEREOF, POSTAGE PREPAID, (UNLESS OTHERWISE INDICATED) TO
THE FOLLOWING:
(F AX 389-9040)
MARY S HOB SON
STOEL RIVES LLP
SUITE 1900
101 S CAPITOL BLVD
BOISE, ID 83702
ADAM L SHERR
QWEST
1600 7th AVE, ROOM 3206
SEATTLE, WA 98191
CONLEY WARD
GIVENS PURSLEY LLP
277 N 6th ST, SUITE 200
PO BOX 2720
BOISE, ID 83702-2720
CLAY R STURGIS
MOSS ADAMS LLP
601 W RIVERSIDE, SUITE 1800
SPOKANE, W A 99201-0663
DEAN J MILLER
McDEVITT & MILLER LLP
PO BOX 2564
BOISE, ID 83701
BRIAN THOMAS
TIME WARNER TELECOM
223 T AYLOR AVE NORTH
SEATTLE, WA 98109
(PERSONAL SERVICE)
WELDON STUTZMAN
DEPUTY ATTORNEY GENERAL
IPUC
PO BOX 83720
BOISE, ID 83720-0074
DEAN RANDALL
VERIZON NORTHWEST INC.
17933 NW EVERGREEN PKWY
BEAVERTON, OR 97006-7438
MARLIN D ARD
WILLARD L FORSYTH
HERSHNER, HUNTER, ET AL
180E 11th AVE PO BOX 1475
EUGENE, OR 97440-1475
CERTIFICATE OF SERVICE