20041101Pagedata Petition for Reconsideration.pdf

Joseph B. McNeal
PageData and
WaveSent LLC
661 0 Overland
Boise, ill 83709
[phone]
Attorney Pro Se
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BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION OF
PAGEDATA FOR APPROVAL OF AN
AMENDMENT TO PAGING
INTERCONNECTION AGREEMENT WITH
QWEST COPRORATION PURUSANT TO 47
C. ~ 252W
IN THE MATTER OF THE APPLICATION OF
W A VESENT, LLC FOR APPROVAL OF AN
AMENDMENT TO PAGING
INTERCONNECTION AGREEMENT WITH
QWEST CORPORATION PURSUANT TO 47C. ~ 252W.
- CASE NO. QWE-03-
CASE NO. QWE-03-
PETITION FOR RECONSIDERATION
PETITION FOR RECONSIDERATION
TABLE OF CONTENTS
Page
Synopsis..........................................................................................................................
Procedural History
..........................................................................................................
Informal Complaint with the FCC
...................................................................................
Commission Staff Mediation......................................... ..................................................
Burden of Proof ............................................................................................................. 5
Commission Order 29604 Does Not Follow Guidelines Established In Commission Order
29154............
.......................................... .................... .... .................................. ..............
Commission s Only Options Under 252( e)....................................
.................................
Qwest's Motion to Dismiss.................................................................
............................
Motion to Dismiss is Not an Option
................................................................................
Setting Bad Precedence.................................................................................................
Economic Harm of Delay ......................................................
........................................
PageData Has Been Harmed By Qwest's Noncompliance of Commission Order No.
29154............................................................................................................................
Application Not Remanded Properly to FCC...................................................
..............
Additional Information to be Provided with Reconsideration........................................
Conclusion..................................................................................................
..................
LIST OF EXHmITS
A - Qwest Letter of Understanding McKenna Letter ) Dated June 4, 2003
B - FCC Letter Dated October 25 , 2004
C - PageData s Original Informal Complaint to FCC Under Section 1321
D - Single Point of Presence Email Correspondence
E - Arch and PageNet Yellow Pages Advertising
, F Unfiled Agreement Examples - Arch and PageNet Settlement Agreements
G - Unfiled Agreement Example - Qwest Letter to Eschelon Dated July 3 2001
H - Unfiled Agreement Listing - Colorado Appendix M Unfiled Agreements Matrix
I - Excerpt from ELI Settlement Agreement with Washington UTC
J - Excerpt from MCI Settlement Agreement with Washington UTC
PETITION FOR RECONSIDERATION - i
PageData and WaveSent LLC (hereinafter the "Pagers ) respectfully request that
the Idaho Public Utilities Commission ("Commission ) reconsider its decision in this
matter in Order No. 29604 under Procedural Rule 331 and the Commission s discretion.
IDAPA 31.01.01.331.01 Pagers contend the Order is unreasonable, unlawful, erroneous
and not in conformity with law, which will be discussed below.
Synopsis
In its most simple form, this case is about Qwest Corporation ("Qwest"
voluntarily negotiating a settlement of an informal complaint at the Federal
Communications Commission ("FCC"
). ,
Qwest consummated the settlement by issuing a
letter ("McKenna Letter ) on June 4, 2003 (attached as Exhibit A). Qwest followed
through on all the terms and conditions set out in the negotiated agreement, except now
Qwest wishes to renege on the delivery of Internet traffic set out in paragraph 3 of the
McKenna letter. Commission staff spent over eight months mediating the implementation
of paragraphs 2 and 3 of the McKenna letter. Qwest failed to file the McKenna letter
understanding/amendment and Pagers filed it officially to be in compliance with Section
252 and to preserve their rights to terminate Internet traffic on a going forward basis
under the negotiated agreement.
The Pagers complied with Order No. 29604 and contacted FCC and followed up
with a letter to the FCC Market Dispute Resolution Division Chief on October 20, 2004.
The FCC staff responded with a conference call (which included Qwest attorneys) on
October 22, 2004. A letter from the FCC dated October 25, 2004, attached at Exhibit B
resulted from the conference call. The FCC responded promptly so the Commission
could make a decision within the 90-day period.
PETITION FOR RECONSIDERATION -
The Commission made an error by improperly remanding the case to the FCC, as
related by FCC staff. By letter dated October 25, 2004, the FCC staff referred the case
back to the Commission for first instance determination per Section 252.It is
unreasonable for the Pagers to have to wait for the Commission and the FCC to decide
sovereignty issues.
For the Commission s reference we have attached as Exhibit C the informal
complaint referenced in the FCC's letter dated October 25, 2004. The complaint was filed
because Qwest would not allow Pagers to adopt the AirT ouch! Arch Paging
Interconnection agreement with a single point of presence. Pages 2 and 3 of the informal
complaint letter summarized Qwest's discriminatory policies against paging companies
and specifically PageData such as: 1) not considering paging companies as full-fledged
telecommunications carriers that terminated traffic; 2) unlawfully restricting the type of
traffic a CMRS paging carrier can terminate; 3) not interconnecting with a single point of
presence; 4) not paying paging carriers reciprocal compensation; 5) settling billing
disputes with select, favored carriers; and 6) not giving all companies access to upper
management settle disputes.The Issuance of the McKenna letter of
understanding/amendment ended the informal complaint at the FCC.
The Commission made an error in granting Qwest' s Motion to Dismiss. The 90-
day timeframe is the ruling factor and extending it is not in conformity with law and goes
against Congress' intent. Section 252(e) clearly and unambiguously requires a vote by the
state commission within 90 days or it is automatically approved. There is no law or
precedent for the Commission to extend the 90-day time period without the approval
automatically taking effect.
PETITION FOR RECONSIDERATION - 2
decision by the Commission that Qwest voluntarily negotiated and wrote the
letter of understanding/amendment is non-reviewable by state court, federal court, and
the FCC. (Section 252(e)(4) and (6))
The Commission is obligated to follow and enforce its own orders and in this
instance Order No. 29154 is directly relevant. The Commission detailed what agreements
need to be filed (Order No. 29154, p. 7) in conformance with the FCC's ruling in Qwest
Petition for Declaratory Ruling, 2002 WL 31204893. The FCC has further expounded on
this in their Notice of Apparent Liability ("NAL", specifically in paragraphs 7, 10, 28
31 and 34. The Commission has a standing order in place for Qwest to continue to review
and file all unfiled agreements in conformance with the Act and the FCC's Declaratory
Ruling (Order No. 29154, p. 8). The Commission is not in conformity with law by not
enforcing their own Order 29154.
Pagers are entitled by statute (Section 252(e)(4)) to have the Commission approve
or reject the agreement within 90-days or non-action, which accomplishes the same thing
as an approval vote by deeming it approved. The Commission is not in conformity with
law by making an extension of the 90-day period.
The Commission erred by placing the burden of proof on the Pagers when the
burden of proof should be placed squarely on Qwest.
Procedural Historv
On August 11 , 2004, PageData and WaveSent LLC each filed a Revised
Application for Approval of Amendment to their respective paging interconnection
agreement with Qwest. On September 28 2004, Qwest filed an Objection and Motion to
1 FCC Notice
of Apparent Liability for Forfeiture In the Matter of Qwest Corporation Apparent Liability
for Forfeiture File No. EB-OS-IH-0263, Released March 12, 2004
PETITION FOR RECONSIDERATION - 3
Dismiss Revised Applications. On October 6, 2004, the Commission filed Order No.
29604. The 90th day from the filing of the Revised Application is November 9, 2004.
Informal Complaint with the FCC
On October 21 , 2002, PageData filed an informal complaint with the FCC under
Section 1321 of the FCC's Local Competition Order. (See Exhibit C) The complaint was
filed because Qwest unlawfully withheld adoption of interconnection agreements with a
single point of presence and reciprocal compensation in violation of Section 252(i);
Qwest was trying to restrict the type of traffic a CMRS carrier could terminate; and
Qwest was out of compliance with the FCC Memorandum Opinion and Order No. 02-
2762 in Idaho.
Qwest complained to the FCC that it would cost too much money to have
interconnection agreements filled out specifically for the Pagers and adoption letters were
more cost efficient. Qwest had failed to file the Arch single point of presence amendment
when it was signed. (See Exhibit D - Single Point of Presence Email Correspondence)
This failure to file caused an array of problems because some states immediately
approved the amendment while other states took as long as 90 days. Therefore some
states did not automatically consider the single point of presence amendment as being
part of the adoption by Pagers, even though that was the original intent. The FCC
mediated filing the single point of presence amendment separately to assure that the
single point of presence amendment was included in the adoption of the interconnection
agreement in each of Qwest's 14 states.
2 FCC Memorandum Opinion and
Order No. 02-276
, "
In the Matter of Qwest Communications
International Inc. Petition for Declaratory ruling on the Scope of the Duty to File and Obtain Prior
Approval of Negotiated Contractual Arrangements under Section 252(a)(1)", October 4 2002
PETITION FOR RECONSIDERATION - 4
On June 4, 2003 Qwest issued the McKenna letter of understanding advising
Pagers that Qwest would work with Pagers for the installation of single point of presence
facilities. Qwest also gave a contact person for assistance in completing the Access
Service Requests ("ASRs ), determining the facilities configuration, and deposit
requirements. Qwest further stated if Pagers used the facilities for Internet traffic, such
traffic would not be subject to reciprocal compensation payments.
Commission Staff Mediation
Since the time Qwest sent the McKenna letter of understanding to Pagers and the
FCC, the Commission staff had been mediating specifically from the letter of
understanding to have PageData and WaveSent's facilities installed. All parties had been
following the letter of understanding until WaveSent and PageData submitted their first
flat rate invoices for reciprocal compensation for facilities under the single point of
presence. Qwest then started to renege on the agreement.
Burden of Proof
The Commission erred in placing the burden of proof on the Pagers. The issue is
whether Qwest or the Pagers should bear the burden of proof regarding the voluntary
nature of the letter of understanding that amends the interconnection agreements. The
burden of proof should be placed squarely on Qwest-the party responsible for writing
the letter of understanding to the FCC, PageData and WaveSent.
According to Pace v. Hymas, 111 Idaho 581 585 726 P.2d 693 (1986):
It is the general rule that where evidence necessary to establish a fact lies
peculiarly within the knowledge and competence of one of the parties
principles of fairness require that party to bear the burden of going
forward with evidence on the issue.
PETITION FOR RECONSIDERATION - 5
In that case, the party having knowledge of facts had the burden of proving it.
Here, Qwest voluntarily submitted a letter of understanding that amended the
interconnection agreements and clarified Section 2.4 specifically stating that if PageData
and WaveSent terminated Internet traffic, PageData and WaveSent were not to charge
Qwest reciprocal compensation for that traffic. Qwest controlled the ASR process and
whether or not PageData and WaveSent received facilities for a single point of presence.
The Commission staff helped mediate the installation of the single point of presence and
the completions of the ASRs. Certainly, the burden of proof is on Qwest to show why
they wrote the letter to PageData, WaveSent and the FCC.
Commission Order 29604 Does Not Follow Guidelines Established
Commission Order 29154
The Commission erred by not applying the same filing requirements to the letter
of understanding as it applied to other amendments (letters of understanding) filed by
Qwest as in Order No. 29154
In Order No. 29154, under Commission Findings and Decision (p. 7) the
Commission stated:
Guiding the Commission s review in this case is a recent decision
regarding the filing requirements for interconnection issued by the FCC.
The FCC found an agreement that created ongoing obligations regarding
resale, number portability, dialing parity, access to rights-of-way,
reciprocal compensation, interconnection, unbundled network elements or
collocation is an interconnection agreement. Qwest Petition for
Declaratory Ruling, 2002 WL 31204893, at 5 (F.C. 2002)"
Further the Commission stated:
3 In the Matter of the Applications of Qwest Corporation and McLeodUSA Telecommunications Services
Eschelon Telecom, Inc., and Covad Communications Company for approval of Amendments to their
Interconnection Agreements, Issued November 19 2002
PETITION FOR RECONSIDERATION - 6
The Commission finds that it is necessary to order Qwest, in addition to its
duties under the Act, to continue to review any and all unfiled agreements to determine
whether they should be filed with the Commission under the provisions of the Act and
the FCC's recent order." (Order No. 29154, p. 8)
The letter of understanding clearly has going forward terms and conditions
relevant to interconnection, interconnection facilities, reciprocal compensation, and
dispute resolution between PageData WaveSent and Qwest. As such, the letter of
understanding meets the Commission Order No. 29154 and Section 251(b) and (c)
criteria and should be filed as an amendment to the interconnection agreements.
Commission Onl tions Under 252 e
Under Section 252(e) the Commission only has choices for handling the
submittal of a negotiated agreement: 1) approve it; 2) reject it if it discriminates against
other telecommunication carriers or if it is not consistent with public interest
convenience, and necessity; or 3) make no ruling and it automatically becomes approved
after 90 days. 47 D.C. Section 252(e)(2) Therefore 252(e)(6) would be implemented
only if the Commission rejects the voluntary agreement because the agreement
discriminated against other telecommunications carriers or is not consistent with public
interest, convenience, and necessity and then the aggrieved party would bring action in
federal court. In essence the Commission s only remedy is an up or down vote based on
the evidence presented. If the Commission rules that Qwest voluntarily wrote the letter of
understanding, that would be the final determination and it would not be subject to
judicial review.
PETITION FOR RECONSIDERATION - 7
west's Motion to Dismiss
Qwest failed to ask for a hearing and their response was a motion to dismiss. A
motion to dismiss is not a proper response in a 252(e) procedure. Section 252(e) requires
an approval or denial or no action (which is the same as approval) after 90 days. These
limited actions were the intent of Congress for quick approval and to promote
competition and entrance into the marketplace.Again, Section 252(e) clearly and
unambiguously requires a vote by the state commission within 90 days or it
automatically approved.
In their motion, Qwest asserted that the McKenna email does not state how or in
what manner it changed the existing contracts and that it said nothing about the contract
language whatsoever much less offering or agreeing to any change of that language.
(Qwest's Objection and Motion to Dismiss Revised Applications , p. 3)
Qwest is trying to obfuscate the issue by keeping the Commission from focusing
in on its Order No. 29154 and the FCC's NAL, in which the FCC stated that "in May
2002 Qwest informed the state commissions in its region of a new policy of filing all
new ' contracts, agreements, and letters of understanding' between Qwest and competitive
LECs that ' create obligations to meet the requirements of Section 251 (b) or (c) on a
going-forward basis."4 The letter of understanding/amendment in this case clearly falls in
the guidelines established by Qwest' s company policy and promise to all the 14 state
commissions in their territories. The Commission should hold Qwest to publicly made
proffilses.
Many of the other letters of understanding or amendments filed by Qwest
various states such as Colorado, Washington, Arizona, New Mexico, Minnesota, or Iowa
4 FCC NAL, ~ 7
PETITION FOR RECONSIDERATION - 8
did not specifically reference specific interconnection agreements or said specifically
which sections or paragraphs of the interconnection agreements were amended, but they
were determined to be amendments because they had going forward terms and conditions
that related to Section 251 (b) or (c).
Having a simple letter considered an interconnection agreement is not unusual.
For example, the letter dated July 3, 2001 from Qwest to Eschelon Telecom concerning
Status of Switched Access Minute Reporting (attached at Exhibit G and referenced in
Exhibit H, Colorado February 27, 2004 "Initial Public Comments of Staff of the
Commission Appendix M Unfiled Agreements Matrix, Item No. 20) has been
determined by Minnesota, Arizona, and Colorado to be an interconnection agreement. It
does not specifically address an interconnection agreement, or say what contract language
it modified. There are over nine letters that the Colorado commission determined were
interconnection agreements in their investigation of unfiled agreements (Exhibit H).
These letters do not rise to the level of settling a complaint filed at the FCC. Qwest is
trying to put restrictions on the Pagers letter of understanding that were not put on
Qwest's other letters of understanding that were deemed interconnection agreements by
various state commissions.
Motion to Dismiss is Not an Option
The Commission erred by granting Qwest's Motion to Dismiss. Section 252(
does not allow the Commission to dismiss a negotiated agreement unless the Commission
rules that the agreement discriminates against other carriers or is not consistent with the
public interest, convenience, and necessity.
PETITION FOR RECONSIDERATION - 9
Settin Bad Precedence
The Washington Utilities and Transportation Commission ("UTC"filed
complaints against 14 CLECs concerning unfiled agreements with Qwest. Some of these
same CLECS provide services in Idaho. As part of their settlement agreements with the
Washington UTC many of the CLECS stated they previously believed the only entity
eligible to file agreements was the ILEC itself (See Exhibits I and showing example
settlement agreement excerpts. ) The Washington UTC specifically ruled that both
carriers involved in an interconnection agreement were responsible for filing with the
state under Section 252. So, if Qwest had not filed the interconnection agreements, then it
was up to the carrier to individually file the agreements themselves.
Even though Washington s ruling has no legal authority in Idaho, legal options on
how competitive carriers are to handle such situations are set. Both PageNet and Arch
provided paging service in Washington and Idaho in the relevant time period. Had Arch
or PageNet done what was recommended in Washington, they would have had to file
their agreements in Idaho as well because their agreements also covered Idaho.
Even the Idaho PUC staff recognized in Order No. 29154 that not all
interconnection agreements were presently on file at the Idaho PUC, even though the
Commission ordered Qwest to review and to file any and all interconnection agreements.
Many of the companies mentioned in the FCC's NAL and many of the companies who
admitted that they were involved in unfiled interconnection agreements in Washington
also do business or have done business in Idaho during the relevant time periods of both
PETITION FOR RECONSIDERATION - 10
agencies investigations. However, Qwest and the CLECs have failed to file those
agreements in the state of Idaho.
PageData and WaveSent have stepped forward to comply with Section 252(a) by
filing the letter of understanding (McKenna letter) so that it would be officially on file at
the Commission. For the telecommunications industry in general in the state of Idaho it is
in the public good that the Commission wholeheartedly support and encourage such
action.
Economic Harm of Delay
Under Section 252(e) the Commission is to approve the interconnection
agreement or deny it within 90 days. While the Commission may disagree with the FCC
remanding the case back to the Commission any decision to extend the proceedings past
the 90-day time frame is in violation of the Act and causes economic harm and delay to
both PageData and WaveSent. The Pagers submit to the Commission that the Pagers
should not be involved in a fight of sovereignty issues between the Commission and the
FCC. That should not delay an up or down vote at the Commission.
Pa eData Has Been Harmed B west's Noncom liance of Commission
Order No. 29154
PageData was harmed because it was not able to adopt terms and conditions out
of unfiled interconnection agreements such as the Arch and PageNet unfiled
interconnection agreements where Qwest refunded in cash 76% of the amount of money
that Arch and PageNet paid Qwest for certain facilities and forgave past disputed
accounts. (See Exhibit F)
PETITION FOR RECONSIDERATION -
Qwest voluntarily filed the Arch and PageNet agreements in Iowa
interconnection agreements and the agreements clearly cover Idaho (see Exhibit F, ~3 of
the Arch agreement and ~la of the PageNet agreement). Arch Paging and PageNet
provided paging in the state of Idaho during all relevant time periods. (See Exhibit E
showing Arch and PageNet yellow pages advertising for the Boise area) PageNet, Arch
and Qwest have all failed to file this interconnection agreement in the state of Idaho.
In footnote 89 of its NAL, the FCC referenced Iowa s investigation of Qwest'
unfiled agreements and the Arch and PageNet settlement agreements were two of the
fourteen agreements filed by Qwest. Arizona, Colorado (see Exhibit H, Items No.5 and
55), Minnesota, and Iowa declared the Arch and PageNet settlement agreements as
interconnection agreements. These agreements cover the state of Idaho and therefore
these interconnection agreements need to be filed in Idaho as well. Qwest continues to
disregard the Commission Order No. 29154 "to continue to review any and all unfiled
agreements to determine whether they should be filed with the Commission under the
provisions of the Act and the FCC's recent order." (p. 8)
lication Not Remanded Pro
The Pagers complied with Order No. 29604 and contacted the FCC to request
clarification of how the Pagers or the Commission would remand the case to the FCC.
The Pagers followed up with a letter to the FCC Market Dispute Resolution Division
Chief on October 20, 2004. The FCC staff responded with a conference call (which
included Qwest attorneys) on October 22, 2004. FCC staff attorneys said the Commission
made an error by improperly remanding the case to the FCC and the case was a state
, matter because the state has first jurisdiction under Section 252. As a follow-up to the
PETITION FOR RECONSIDERATION - 12
conference call, on October 25, 2004, the FCC staff referred the case back to the
Commission for first instance determination per Section 252. (See Exhibit B)
Additional Information to be Provided with Reconsideration
Because of the unusual nature of this case and the 90-day time restraint that is
involved in the decision, Pagers have submitted additional evidence supporting the
Pagers position with this Petition. The Pagers could provide more detailed
correspondence between the Pagers Qwest and the FCC to supplement the additional
information provided.
Conclusion
For all the foregoing reasons, Pagers request that the Commission grant
reconsideration by rescinding, modifying or changing the order granting Qwest's Motion
to Dismiss; considering all the attached exhibits; putting the Application for the submittal
of the letter of understanding/amendment back on the 90-day track, which ends
November 9, 2004; making a ruling either approving the Application or denying it per
Section 252(e)(2), Commission Order No. 29154, the FCC Declaratory Ruling (2002 WL
31204893), and the FCC NAL; and requiring Qwest to file the Arch and PageNet
interconnection agreement according to Commission Order No. 29154.
Respectfully submitted this 27th day of October, 2004.
PETITION FOR RECONSIDERATION -
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 27th day of October, 2004, I caused a true and
correct copy of the foregoing PETITION FOR RECONSIDERATION to be served, in
the manner indicated, on the following:
Jean Jewell, Secretary
Idaho Public Utilities Commission
472 West Washington Street
Boise, ID 83720-0074
- X Hand Delivery
S. Mail
Facsimile
Email
William J. Batt
Batt & Fisher
S. Bank Plaza, Suite 500
101 S. Capitol Boulevard
Boise, ID 83701
- X Hand Delivery
S. Mail
Facsimile
Email
PETITION FOR RECONSIDERATION - 14
Exhibit A
Qwest Letter of Understanding ("McKenna Letter ) Dated June 4,2003
-----
Original Message-----
From: Bob McKenna (mailto:Bob McKenna
Sent: Wednesday, June 04, 2003 3:02
To: Joseph McNeal
Cc: Christopher Olsen; William Bill Batt; Bryan E Sanderson; Andrea E
Sanchez; kpettey; dljenni
Subject: WaveSent and PageData
Text item: Message Text
Dear Mr. McNeal:
We have reviewed your May 28 responses to the FCC's questions concerning
interconnection requests by PageData and WaveSent. Upon such review, wehave determined that Qwest will not insist on resolution of Qwest'
claims for payment of past amounts as a precondition to either
PageData s or WaveSent's ordering further interconnection facilities andservices from Qwest. Qwest will be willing to process properly
submitted ASRs for interconnection on a timely basis upon submission.
In the past, PageData and WaveSent have had difficulty completing andsubmitting proper ASRs for service. Andrea Sanchez (303.965.1805) willbe available to meet with you to assist you in preparing these
documents. As Qwest has noted in its filings with the Federal
Communications Commission, the ASRs that PageData sent to the Commission
are not complete and do not provide sufficient information on which
Qwest could begin to fill the order. In addition, while Qwest is
willing to provide PageData and WaveSent with the interconnection
facilities and services that they need to provide the services for which
such interconnection can lawfully be utilized , the number of trunks
shown on the two ASRs filed with the FCC is clearly excessive for thepaging services that form the basis of the ASRs. These matters can be
worked out with Ms. Sanchez, who can insure that the ASRs that yousubmit are complete and accurate.
Finally, irrespective of disputes over past amounts due, there does not
seem to be any dispute that compensation will be necessary for services
provided under current interconnection agreements. Such compensation
can be required in the case of transiting traffic and WATS or
equivalent facilities, on the one hand, and reciprocal compensation on
the other hand. Should PageData or WaveSent use interconnection
facilities or services for Internet traffic, such traffic would not be
subject to reciprocal compensation payments. Qwest would , of courserun its standard credit
check on WaveSent to determine whether a deposit is necessary. These
and
similar compensation matters likewise can be worked out in advance with
Ms. Sanchez. It makes sense to determine at this time what facilities
and services must be paid for, and by whom.
Please do not hesitate to give me a call with questions. I can be
reached at 303.672.2861.
Exhibit B
FCC Letter Dated October 25, 2004
Federal Communication~ Commission
Washington, D~C. 20554
October 2S~ 2004
Mr. Joseph McNeal
6610 Overland Road
Boise, ID 83709
(208) 373...7159 (facsimile)
Re:In the Matter of the Application of PageData for Approval of an
Amendment to a. Paging Interconnection Agreement with Qwest
Corporation Pursuant to 47 V,C. f 252. Case No. QWE-T...O3-
In the Matter of the Application of WaveSentt LLC for Approval of an
Amendment to a Paging Interconnection Agreement with Qwest
Corporation Pursuant to 47 D.C. ~ 2S2 QWE-O3..
Idaho Public Utilities Commission Order No. 29604
Dear Mr. McNea1~"
ThJs letter responds to your October 20, 2004 letter to Alexander Stan, Chief ofthe Markets Dispute Resolqtion Division of the Federal Communication~ Commission
FCC") Enforcement Bnrea1.~ regarding the above-referenced matter. In your letter! youask for guidance with respect to IPUC Order No, 29604.
In re~ponse to your letter, I participated in a conference call with you and counsel
for Qwest on October 22 2004. During that call, I explained that the FCC's infonnaIdispute resolution processes are not intended or designed to result in a Commission
determination, decision~ and/or order resolving the merits of an informal dispute.
Infonnal disputes such as yours are typically closed without any formal decision by the
Commission, whether or not they are ultimately settled by the parties.
OCT - 25 - 2004 MO~,~ 12: 47F'11 10 F'R(~E : 2
Consistent with our practice in bandling informal disputes, Conmrission staff
facilitated discussions between you and Qwest in 2003 regarding an apparent cJ:isputeinvolving Qwest's alleged refusal to allow your company to opt into existing
interconnection agreements. I understand that that dispute was resolved and your
company ultimately opted into various interconnection agree~ents with Qwest.
Subsequently, in response to an apparent attempt by your company to take service under
one or more of these intercoDDection agreements) Qwest sent the June 4) 2003 email
auached to your October 22nd letter. Commission staff received the email but did not
take any position with respect to Qwest's email and did not adopt or endorse this email as
a formal or informal resolution of the dispute you were apparently having with Qwest
concerning ordering service, a dispute which differs from the opt",in dispute you initially
asked COTl'mi ssion staff to medi&te.
It appears from your. letter ~at your present dispute with Qwest concerns whetherthe Qwest email should be considered an amendment to one or more of your existing
interconnection agreements under section 252 of the Communications Act of 1934, asamended ("Acft
).
As I indicated, Commission staff was not ask~d to and did not malceany determination as to the subsUmQe, effect, legality, and/or enforceability of the
referenced email under the governing law. Thus, Commission staff never considered
whether the email WQS a valid section 252, amendment, nor would it have been
appropriate for Commission staff to make that determi~ation, given that section 252 gives
state conunissions the exclusive right to make such determinatiom in the first instance.
Do not hesitate to contact me if you have any additional questions.
Sincerely,, ~4e(
Anthony J. DeLaurentis
Attorney
Markets Dispute Resolution Division
Enforcement Bureau
Federal ConunlIDications Commission
co:Rob~rt ~cKe1U1a, Qwest Counsel [phone] (facsimile)
, Timothy Boucher, Qwest Counsel [phone] (facsimile)
OCT-25-2004 MON 12:47PM 10:PAI3E : 3
Federal CommunicatioDS Commission
Washington, D.C. 20554
FASCDMLE COVER SHEET
Date: OctQber 26, 2004
FROM: Anthony J. DeLaurentis
Attorney.
Market Disputes Resolution Division
Enforcement Bureau
Ph(tne: [phone]Fax: [phone]
TO:Mr. Joseph McNeal
(208) 373..7159 (facsill1ile)
Timothy Boucher, Qwest
[phone] (facsimile)
Robert McKenna, Qwest
(303) 896..1107 (facsimile)
RE:In the Matter of the Application of PageData for Approval of an Amendment
to a Paging Interconnection Agreement with Qwest Corporation Pursuant to
47 V,C. ~ 252, Case No. QWE- T -03-
b'l the Matter of the Application of Wave Sent, LLC for Approval of an
Amendment to a Paging Interconnection Agreement with Qwest Corporation
Pursuant to 47 D.C. 9 252! QWB-O3..
Idaho Public Utilities Commission Order No. 29604
Number of Pages (including cover sheet):
, ,~,:- '
\11 ~
OCT -25-2004 MON 12: 47PM 10:PAGE: 1
Exhibit C
PageData s Original Informal Complaint to FCC Under Section 1321
October 21, 2002
Chris Olsen
Assistant Chief
Market Dispute Resolution Division
Enforcement Bureau
Federal Communications Commission
445 Twelfth Street SW, Room 5A-803
Washington DC 20554
[phone]
[phone] Fax
RE:FCC Enforcement of 47 USC ~ 252(i) to Allow Adoption of Existing State Commission
Approved Interconnection Agreements Under Pick and Choose and to Protect the
Integrity of the FCC Auction Process
Dear Mr. Olsen:
Per our conversation last week regarding section 1321 of the Federal Communications
Commission s ("FCC" or "Commission ) 96-325 Order (The Local Competition Order) we are
submitting the following. PageData paid the FCC for CMRS licenses and bought frequencies
during the Commission Auction 40 with the expectation that the Commission would enforce its
own rules and regulations. Under 47 USC ~ 252(i) and other FCC regulations, PageData wants
the Commission to enforce its regulations and require Qwest to allow PageData to adopt the US
WEST New Vectorl interconnection agreement before Qwest tries to cancel it. PageData wants
the FCC to enforce PageData s rights under 47 USC ~ 252(i) to adopt the full Arch agreement as
filed in Iowa 2 except for paragraph 7, to be effective in all of Qwest' s 14 states. PageData wants
the US WEST New Vector agreement executed in any state that US WEST New Vector has an
interconnection agreement.
PageData wants the other benefits provided in the Arch and PageNet agreements in the same
time frame. In the Arch agreement Qwest agreed to pay Arch cash within five (5) days and credit
Arch's accounts within sixty (60) days.3 In the Arch agreement they also agreed to execute new
interconnection agreements within three (3) business days.4 The FCC and the U.S. Supreme
Court confirmed that small carriers that do not have the bargaining power that large multi-state
carriers have can use the pick and choose adoption procedures to navigate out of difficult
I Interconnection Agreement between US WEST Communications, Inc. and US WEST New Vector Group, Inc.
a. AirTouch Cellular, Idaho Docket USW-97-, September 9, 19972 Arch Amendment
, "
Confidential Billing Settlement Agreement", effective June 16 2000, as filed in Iowa Docket
NIA-00-3 Arch Amendment
, "
Confidential Billing Settlement Agreement", effective June 16 2000, paragraph 5, Payment.4 Arch Amendment
, "
Confidential Billing Settlement Agreement", effective June 16,2000, paragraph 3
Interconnection Agreements
PO Box 15509
Boise, Idaho 83715
Telephone [phone]
Facsimile [phone]
6610 Overland Road
Boise, Idaho 83709
Page 2
situations in a time-effective manner.5 It was the FCC's goal to promote competition in the
marketplace and the US Supreme Court upheld this goal.
PageData has been a victim of Qwest's discrimination policies against paging companies in the
following areas:
1. Carriers that Qwest considered as Type 1 paging only were not considered full-fledged
telecommunication carriers under the Act. Qwest's position was that Type 1 pagers did
not terminate traffic at their switch but the traffic was terminated at Qwest's end office.
The FCC TSR Order6 overturned this unlawful Qwest policy. When PageData initially
requested CMRS interconnection facilities from Qwest, Qwest put PageData in theretail/small business group instead of the wholesale group, Qwest's CMRS
interconnection division. Qwest kept PageData in the retail/small business group until
July 1998 when PageData hired an attorney to represent the company.
2. Qwest placed unlawful restrictions on the type of traffic that a CMRS paging carrier can
terminate, especially for the companies Qwest considered as Type 1 paging companies
only. This policy is against 47 USC ~ 51.307(c) and 47 USC ~~ 25 I (c)(2) and
251(c)(2)(c). It has been Qwest's policy to restrict the types of telecommunications
services that can be offered by interconnected carriers, in direct violation of federal law.
PageData is certainly entitled by Federal law to equal treatment on rates, terms and
conditions that are just, reasonable and nondiscriminatory, with other
telecommunications carriers. 47 USC ~~ 251(c)(2)(d) and 252(i). 47 CFR ~ 51.809(a)
specifies that ILECs are required to make interconnection terms equally available to other
carriers.
3. Qwest has refused to interconnect with companies they considered as only Type 1 paging
carriers with a single point of interconnection in the LATA, as required FCC rules.
The FCC's July 17, 2002 Memorandum Opinion and Order DA 02-1731 ruled against
this unlawful Qwest policy. Arch is just now negotiating a single point of interconnection
amendment to their current agreement with Qwest.
4. Qwest did not pay paging carriers reciprocal compensation for terminating Qwest
originated traffic. The FCC TSR Order paragraph 19 and the Local Competition Order ~
251(b)(5) overturned this Qwest policy.
5. Qwest selected favored carriers, or carriers that agreed as part of the settlement
agreement, not to object to Qwest's section 271 long distance applications, to settle
billing disputes and other related disputes. For example, see the Arch, PageNet
Metrocall, and McLeod settlement agreements. Qwest discriminated against other
carriers by not offering them the same terms and conditions for settlements as the select
carriers. The FCC said, "We find that agreements addressing dispute resolution and
5 See AT&T Corp. v. Iowa Utilities Board, 525 U.S. 3666 FCC TSR Memorandum Opinion and Order 00-194, adopted May 31, 2000, released June 21, 2000, paragraph 227 FCC's July 17,2002 Order DA 02-1731 "In the Matter of Petition of World Com, Inc. Pursuant to Section
252(e)(5) of the Communications Act for Preemption of the Jurisdiction ofthe Virginia State Corporation
Commission Regarding Interconnection Disputes with Verizon Virginia Inc., and for Expedited Arbitration, et al.
CC Docket Nos. 00-218 00-249,00-251, paragraphs 52, 301 and 302
Page 3
escalation provisions relating to the obligations set forth in sections 251 (b) and (c) are
appropriately deemed interconnection agreements.
6. Other catTiers had access to Qwest's upper management to get their problems resolved in
a short time frame. For example, see the Eschelon, McLeod, and other unfiled
interconnection agreements with escalation terms to settle disputes. PageData has been
deprived of this interconnection agreement provision. PageData has not had access to
upper management, such as Audrey McKenney, Senior Vice President for Qwest's
Wholesale Market Business Development group, with authority to settle disputes. Many
of the previously unfiled interconnection agreements that have recently been made public
by state commissions have signature pages with Ms. McKenney s signature. PageData
requested dispute resolution with Qwest upper management in a letter dated June 27,
2002, but no one at Qwest with signature authority to commit Qwest has talked to
PageData or given any cotTespondence.
Qwest's company policies conflicted with Commission regulations and PageData s requests.
During these long standing disputes over the past four (4) years, Qwest has had PageData on
hold, waiting for the Commission to rule on each of these Qwest policies and interpretation of
the Telecommunications Act.
1. PageData, through its attorney, requested to be moved from the small business group to
the carrier services (wholesale) group on July 17, 1998. (PageData had made earlier
requests to no avail.)
2. PageData requested a refund of overcharges for Qwest delivering Qwest originated traffic
to PageData s point of interconnection in a letter dated July 17, 1998.
3. PageData requested a single point of interconnection in the LATA on August 29, 1998.
PageData requested additional facilities (10 T -1 s) to go with the single point of
interconnection in a letter dated September 8, 1998.
4. Qwest refused to allow PageData to adopt interconnection agreements that had the same
terms and conditions as the US WEST New Vector agreement, that embodied the new
rules of the road under the Telecommunications Act.
These original requests by PageData predate the cutTent long standing disputes between
PageData and Qwest. PageData' s requests have remained valid requests under the
Telecommunications Act and have passed the test of time and interpretation of the Commission
rules. Qwest did not see it this way, however, and has disputed PageData s requests to this day,
delaying any possible expansion of PageData' s business. Had Qwest honored these requests on
the date requested there would have been no problems and no cutTent long standing disputes.
Through various Orders and Decisions, the Commission has overturned Qwest's interpretation of
the Telecommunications Act and Qwest's long-standing policies. None of the Commission
Orders that have been issued have countermanded the original requests by PageData. PageData
requests have always been in compliance with the Telecommunications Act.
II FCC Memorandum Opinion and Order No. 02-276
, "
In the Matter of Qwest Communications International Inc.
Petition for Declaratory Ruling on the Scope of the Duty to File and Obtain Prior Approval of Negotiated
Contractual Arrangements under Section 252(a)(I)", October 4 2002 at ~ 9
Page 4
Several state commissions (Minnesota, Iowa, New Mexico, and Arizona) have investigated
Qwest for discriminatory practices in connection with Qwest's interconnection agreen1ents and
found that Qwest had not filed all interconnection agreements (both oral and written) for
approval by the applicable state commissions, thus making the terms and conditions previously
unavailable for other catTiers to pick and choose. PageData has been discriminated against
because the terms and conditions that it requested from Qwest were offered to other catTiers, but
Qwest refused PageData s requests.
Qwest has treated PageData in a discriminatory manner including the treatment regarding the
adoption of interconnection agreements that are approved by state commissions and available for
adoption. Qwest has not allowed PageData to complete a simple adoption of an agreement that
has already been approved by state commissions. US WEST New Vector and Western Wireless
had the benefit of a single point of interconnection so they could expand their business. Not only
did Western Wireless and US WEST New Vector have the benefit of a single point of
interconnection but they also had no recurring charges for their T -1 facilities. The Arch
PageNet, and Metrocall disputes were far more complicated than PageData s dispute with Qwest.
Qwest settled disputes with Arch, PageNet, and Metrocall, which freed up their legal resources
while Qwest continues PageData s dispute. This gives this sector of PageD at a s competitors adistinct advantage over PageData. The Arch, PageNet, and Metrocall settlements included
accepting a compromise in interconnection agreements that included restrictions on services that
could be provided on the Qwest facilities. Metrocall, Arch, and PageNet were able to expand
with the help of Qwest. They were able to take advantage of the licenses they purchased at the
auction by settling with Qwest over 2 years ago. IfPageData s dispute had been a priority with
Ms. McKenney or someone else of her caliber at Qwest with a will to settle, this dispute would
have been handled long ago.
PageData did not receive a single point of interconnection like US WEST New Vector, a Qwestsubsidiary, nor settlement benefits similar to Arch and PageNet. In fact PageData has been on
unofficial provisioning hold so PageData has not been able to expand its business despite
numerous requests for 10 additional T-ls (interconnection facilities). PageData has not been able
to fully implement its marketing and business plans with proprietary technology. PageData lost
opportunities to buy existing businesses with large customer bases because Qwest obfuscated
requests by PageData for additional facilities.
Qwest did not offer companies that they considered as paging carriers only, a single point of
interconnection even though they were doing it for themselves under the US WEST New Vector
agreement9 and for Western Wirelesslo since 1997. This is a prime example of Qwest exercising
its monopolistic power to manipulate the market to its liking. The following is a quote from the
US WEST New Vector agreement.
The Parties acknowledge that Carrier will initially serve all of the customerswithin a given LATA through a single Carrier switch. The Parties also
9 Interconnection Agreement between US WEST Communications, Inc. and US WEST New Vector Group, Inc.
a. AirTouch Cellular, Idaho Case No. USW-97-, approved August 28, 1997, page 11, ~ D(I)(c)10 Interconnection Agreement between US WEST Communications, Inc. and Western Wireless Corporation, Idaho
Case No. USW-96-11 and WST-96-, approved January 17, 1997
Page 5
acknowledge that Carrier may, in the future, deploy additional switches in each
LA T A. For purposes of call termination, the initial Carrier switch shall be treated
as an end office switch.
Because Qwest considered PageData a Type 1 paging carrier only, Qwest never offered these
two interconnection agreements to PageData even though PageData has two-way, CMRS
licenses from the Commission.
After thorough examination of old and new interconnection agreements that were previously
unavailable to PageData and to quickly resolve PageData s long standing disputes with Qwest
PageData chooses to adopt the following interconnection agreements under 47 USC ~ 252(i).
PageData is requesting that the Commission enforce 47 USC ~ 252(i) and allow PageData to
adopt the following two interconnection agreements with Qwest.
1. Under pick and choose, PageData will adopt the full Arch Interconnection agreement
with the exception of paragraph 7 -- Release, that is filed in Iowa (Docket NIA-00-32)
but covers all of Qwest' s states. PageData wants to adopt this agreement in each of
Qwest's 14 states for the future expansion of PageData ' s business. This agreement will
cover PageData s current Type 1 lines and numbers in Idaho. PageData wants the
agreement executed in the same time frame and speed as in the Arch interconnection
agreement amendment dated June 16 2000. As per the formula and ratios in the Arch
agreement PageData wants a cash refund of approximately $247 000 within five (5) days
for overpayment of delivery of Qwest traffic and all PageData s accounts credited within
sixty (60) days and any other subsequent outstanding disputed accounts credited. Only
part of the PageNet agreement dated April 23 , 2001 was provided to Iowa. Pages 2
through 4 were not included in the Iowa filing (Docket NIA-00-32). PageData requests
the Commission require Qwest to send the complete document to PageData since the
complete document was not filed in Iowa per 47 USC ~ 252.
2. Under 47 USC ~ 252(i) PageData requests to adopt the US WEST New Vector
interconnection agreement (Idaho Case No. USW-97-15, September 9, 1997) in full
with no changes, in each Qwest state this agreement has been approved. PageData has
requested the installation of 10 Type 2 T -1 s per the US WEST New Vector pricing
schedule (one time installation charge of$78.92 per T-l with no recurring charges). The
Covad agreement allows for installation of facilities within 48 hours of ordering and
PageData will accept installation within 10 days. If Qwest has any problems
understanding or completing this request, then as in the Eschelon agreement PageData
requests two (2) Qwest employees at PageData s office to assist with the provisioning.
The Eschelon agreement also reimbursed Eschelon for having to hire consultants and
accountants to audit and defend Eschelon s rights. Likewise, PageData requests
reimbursement for its attorneys and consultants fees.
Starting with the original requests of P ageD ata for refunds of overcharges, one point of
interconnection, the installation of lOT -1 s, and adoption of the terms and conditions in the
Western Wireless or US WEST New Vector interconnection agreements, a time line matrix
including a state by state comparison of terms and conditions of unfiled interconnection
agreements, would show how Qwest's company policies contradicted Commission regulations
and discriminated against PageData. Qwest did not apply their company policies to themselves
Page 6
or their own subsidiaries. As an example of Qwest' s discriminatory treatment, compare
PageData s original requests in a timeline matrix with Qwest's company policy replies to what
services Qwest was providing its own subsidiary, US WEST New Vector.
On September 3,2002 PageData asked Qwest to adopt the Western Wireless agreement. On
October 2, 2002, PageData sent a letter of inquiry to Qwest as to the status of the request for
interconnection. In Qwest's reply on October 7, 2002 Qwest played another stall tactic and said
the agreement was expired so they were confused, even though Qwest's subsidiary US WEST
New Vector had an agreement based off the Western Wireless agreement. PageData notified
Qwest on October 10 2002 that PageData wanted to adopt the US WEST New Vector
agreement. PageData has reason to believe Qwest is trying to cancel the US WEST New Vector
agreement so PageData would be unable to adopt it.
Under 47 USC ~ 252(i), Federal Trade Commission rules, and other federal regulations covering
discrimination, PageData deserves the same terms and conditions as in the previously unfiled
secret interconnection agreements. PageData now knows about the numerous settlements made
public by various state commissions that Qwest made with many other companies, including
cash refunds, disputed accounts credited, attorneys and consultant fees paid, facilities installed in
a short time frame, provisioning assistance, and escalation procedures. To expect PageData to
accept anything less is discrimination.
As envisioned by the Commission, PageData as a small carrier is using 47 USC ~ 252(i) to pick
and choose the same terms and conditions as the large multi-state carriers. The simple adoption
of the US WEST New Vector interconnection agreement, the Arch interconnection agreement as
filed in Iowa, and provisions from previously unfiled interconnection agreements would settle all
outstanding PageData disputes with Qwest outlined above.
Based on the Commission s obligations to enforce its rules in conformance with both the
Telecommunications Act of 1996 and Congressional mandates regarding auction proceeds,
PageData requests that the Commission enforce PageData s statutory rights to adopt the
requested interconnection agreements under 47 USC ~ 252(i), have Qwest install the requested
interconnection facilities, and provide any other relief allowed PageData for damages.
Sincerely,
Sf (via email)
Joseph B. McNeal
Exhibit D
Single Point of Presence Email Correspondence
Page 1 of 1
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Show Full Headers:
Date: Tue, 14 Jan 2003 13:46:15 -0500
From: Christopher Olsen" ..:::COLSEN(Q)fcc.Qov~ill
To: ..:::ioseph(Q)paQedata.com~I.:tl
Subject: Fwd: Re: PageData
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FYI - update from Qwest re filing dates of Arch SPOP amendment.
Delete Print Message - 294/529
Date: Tue, 14 Jan 2003 13:44:33 -0500
From: Bob McKenna " ..:::rxmcken(Q)qwest.com~I.:tl
To: ..:::COLSENa!)fcc.gov~ill
Subject: Re: PageData
Hi Chris. Attached is a chart showing the filing dates for all of our
states. Please give me a call with additional questions. Thanks for your
patience. bob
(See attached file: FILING DATES ARCH SPOP AMENDMENTS.doc)
. .. , -.,. ......,.. . _. ," ~_
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FILING DATES ARCH SPOP
AMENDMENTS .doc
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FILING DATES ARCH SPOP AMENDMENTS
STATE DATE FILED WITH COMMISSION
Arizona
Colorado
Iowa
Idaho
Minnesota
Montana
North Dakota
Nebraska
New Mexico
Oregon
South Dakota
Utah
Washington
Wyoming
12/12/02
1/6/03
12/18/02
12/16/02
12/18/02
12/18/02
12/27/02
12/18/02
12/18/02
12/19/02
12/17/02
12/20/02
12/18/02
12/18/02
Page 1 of 2
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Message-Id: ~seO 18887. 069~gwmai I. fcc. gov:;:.
Date: Thu, 19 Dec 200208:51:07 -0500
From: Christopher Olsen" ~COLSEN~fcc.gov:;:.I:t1
To: ~ioseph~pagedata.com:;:.I:t1
Subject: Fwd: Re: PageData
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Date: Wed, 18 Dec 200217:59:54 -0500
From: Bob McKenna" ~rxmcken~qwest.com:;:.I:t1
To: ~COLSEN~fcc.gov:;:.I:tl
Subject: Re: PageData
I initiated the process immediately when we discovered the Idaho problem.
However, I told our people to drop everything and get it filed in Idaho
because that's where the confusion seemed to be most pointed. I'
follow up and give you final assurance of the other filings. Thanks for
your patience. bob.
Christopher Olsen" ~COLSEN~fcc.gov:;:. on 12/181200203:28:00 To: ~rxmcken~qwest.com:;:.
cc: ~hhaney(gJqwest.com:;:., ~joseph~pagedata.com:;:.
Subject: Re: PageData
Bob, thanks for following up on this and getting back to me so quickly. In
light ofthe fact that there was some confusion as to whether the Arch
amendment had been filed in Idaho, have you also gone back to ensure that
the
amendment has in fact been filed in the other states in your region?
Please
let me know. Thanks
Chris Olsen
FCC Enforcement Bureau
202 418-7332
:;:.:;:.:;:.
Bob McKenna 12/17/02 03:43PM
:;:.:;:.:;:.
Dear Chris. Your e.mail of Friday asks for further information on
the filing of the Arch SPOP amendment with the Idaho Commission.
This amendment was executed by Qwest on October 16, 2002. The
amendment took effect immediately. The amendment was sent to the
organization responsible for the filing of these amendments.
Accordingly, Qwest personnel believed that the amendment had been
previously filed with the Idaho Commission. Unfortunately, in
reviewing the actual filing log in order to respond to your follow-up
question, it was discovered that the amendment had not been filed
(although it had been sent to PageData on December 13 in accordance
with Qwest's response). Qwest took immediate steps to file the
agreement yesterday. Attached is a copy of the stamped transmittal
Page 2 of 2
letter filing the amendment with the Idaho Commission together with
the amendment itself.
Qwest apologizes for this oversight. There was no intent to mislead
the Commission, and Qwest's personnel believed that the amendment had
been filed some time ago.
Please do not hesitate to give me a call with further questions. My
number is 303.672.2861.
Bob McKenna
(See attached file: pagedataamend. pdt) (See attached
file: Amendment. DOC)
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Copyright (g 2002 PageData.All rights reserved.
Exhibit E
Arch and PageN et Yellow Pages Advertising
QWE- T 03-06 / QWE- T 03-
ATTACHMENTS ARE POOR
QUALITY AND CANNOT BE
SCANNED SEE CASE FILE