20031212Reply.pdf

JOSEPH MCNEAL, d/b/a P AGEDA T A
O. Box 15509
Boise, ill 83715
[phone]
RECEIVED
FILED
ZU03 DEC 12 PM 12: kG
FUBLJC
UTIL niES COf'H'HSSION
Attorney Pro Se
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
JOSEPH B. MCNEAL, d/b/a PAGEDATA,
Complainant CASE NO. QWE-03-
vs.
QWEST CORPORATION
Respondent.
PAGEDATA'S REPLY TO
QWEST CORPORATION'S LIMITED RESPONSE
TABLE OF CONTENTS
Page
INTRODUCTION
..........................................................................................................
The Commission Has The Authority To Hear This Complaint.........................................
Qwest Is Contractually Bound To Accept PageData s Selected Method Of Relief And Is
Without Recourse.........
"""""""""""""""""""""""" ................... .................. .......... ....
Qwest s Claim That The Interconnection Agreement Is A Private Contract Is Incorrect..
Equal Treatment........................................................................... ..........
............... ...... ....
Public Interest
......................................................
.......................................................... 9
The Idaho Commission Is The Best Authoritative Body To Issue A Decision In This
Dispute
.........................................................................................................................
Qwest's Continued Scheme To Limit Competition............................................
............
Other Complaints And Proceedings.................................................
..............................
No Difficult Math Involved In PageData Request.......................................................
Due Process
............................................................................................,.....................
Qwest Has Not Disconnected Facilities Per PageData s Request ...................................
CONCLUSION..........................................................................................................
...
PAGEDATA'S REPLY TO QWEST CORPORATION'S LIMITED RESPONSE - PAGE i
INTRODUCTION
In Qwest Corporation s ("Qwest ) Limited Response filed November 26 2003
with the Idaho Public Utilities Commission ("Commission ) Qwest admitted that it failed
to correct billings and unilaterally withheld reciprocal compensation payments without
availing itself to the options that it contractually agreed to in the dispute resolution clause
(Section 13.14) of the interconnection agreement with PageData. Now Qwest seeks to
delay and hinder PageData from exercising its option for dispute resolution as outlined in
the interconnection agreement.
By elevating one portion of the dispute resolution clause over another Qwest is
now trying to assert that arbitration is the sole remedy for dispute resolution. Qwest
itself, had the option of exercising one of three dispute resolution options. Qwest chose to
leave that decision to PageData alone. Qwest s management is still thinking pre-1996
with actions it could have taken under tariff. These same actions are prohibited by the
1996 Telecommunications Act (" 1996 Tel Act ) and in the interconnection agreement.
Qwest should have known that it could not continue to do nothing and it had to choose
one of the dispute options, but left the decision up to PageData. Qwest violated their
contractual options for dispute resolution in the interconnection agreement by
withholding payments of reciprocal compensation and not correcting the billing for
PageData.
The questions before the Commission are:
1. Does the Commission have jurisdiction? PageData believes it does and has
outlined that below.
PAGEDATA'S REPLY TO QWEST CORPORATION'S LIMITED RESPONSE - PAGE 1
2. Can a party to an interconnection agreement seek relief by initiating any
option in the dispute resolution clause if the other party is uncooperative?
3. Is arbitration the sole remedy for dispute resolution despite the fact that
the interconnection agreement includes three specific options (arbitration
Commission, or the FCC) and excludes two other options (federal and
state court)?
4. Can an ILEC such as Qwest unilaterally take action against a competitive
carrier without invoking the dispute resolution clause?
5. Can an ILEC such as Qwest refuse to negotiate in good faith to settle a
dispute and then interfere with the options exercised in the dispute
resolution clause?
6. Does the Commission have authority to investigate and correct billing
inaccuracies between competitive carriers that operate within Idaho?
7. Can an ILEC such as Qwest take action against a competitive carrier while
accounts are in active dispute before authoritative bodies?
8. Is an interconnection agreement a private contract not subject to the
Commission s authority as Qwest claims?
9. Is an interconnection agreement a private contract with no entity having
authority over the interconnection agreements except Qwest as Qwest
claims?
These are the questions that Qwest has raised in their Limited Response.
PageData believes addressing these questions is important to the telecommunications
PAGEDATA'S REPLY TO QWEST CORPORATION'S LIMITED RESPONSE - PAGE 2
industry in Idaho. PageData has addressed these questions in this Reply. The
Commission s answers to these questions will determine the Commission s role in
dispute resolutions in interconnection agreements in Idaho.
The Commission Has The Authority To Hear This Comolaint
Precedence has been set by the Commission for the Commission to hear
complaints for failure to correct billing resulting in improper assessments of charges in
Commission Order No. 29219 (Idaho Telephone Association, Iluminet, et al vs. Qwest
Case No. QWE-02-11).
Footnote 1 of the Commission s Order No. 29219 states the following:
Idaho Code ~ 62-615(1) gives the Commission "full power and authority
to implement the federal telecommunications act of 1996. . .. Other
requirements of the Telecommunications Act also may be implicated by
the allegations and issues raised by Complainants, including terms of an
interconnection agreement between Qwest and ELI, and Qwest's
obligation to provide nondiscriminatory access to its services and facilities
under sections 251(c)(2)(D) and 251(c)(3) of the Act.
In its Order No. 29219, page 4, the Commission stated the following:
Idaho Code ~ 62-614 is a broad grant of authority to the Commission to
resolve disputes between incumbent telephone companies, like Qwest, and
any other telephone service provider. Section 62-614 permits a telephone
corporation that has elected regulation under Title 62, Idaho Code, or any
other telephone corporation, including any mutual, nonprofit or
cooperative corporation over which the Commission normally has no
authority, to apply to the Commission for resolution of their disputes. The
subject matters of dispute that may be brought to the Commission are
broadly defined: the Commission s authority is properly invoked
whenever the parties "are unable to agree on any matter relating to
telecommunication issues between such companies, then either telephone
corporation may apply to the commission for determination of the matter.
Idaho Code ~ 62-614(1) (italics added). The Commission has jurisdiction
to "issue its findings and order determining such dispute in accordance
with applicable provisions of law and in a manner which shall best serve
the public interest." Idaho Code ~ 62-614(2).
PAGEDATA'S REPLY TO QWEST CORPORATION'S LIMITED RESPONSE-PAGE 3
In its Order No. 29219, pages 6-, the Commission stated the following:
Idaho Code ~ 62-614 confers jurisdiction on the Commission to resolve
the issues raised in the Complaint. The legislature intended when it
enacted the Idaho Telecommunications Act of 1988, of which Section 62-
614 is a part
, "
to encourage innovation within the industry by a balanced
program of regulation and competition." Idaho Code ~ 62-602(1). The
legislature state in 1997 amendments to the Act that "the
telecommunications industry is in a state of transition from a regulated
public utility industry to a competitive industry." Idaho Code ~ 62-602(4).
In this environment, the legislature anticipated disputes would arise
between companies as they attempted both to work together as necessary
also to compete with one another. Thus, when telecommunication
companies "are unable to agree on any matter relating to
telecommunication issues between such companies " Section 62-614
establishes the Commission as the forum to resolve the dispute.
Commission Rule of Procedure No. 13 provides that the Commission s rules "will
be liberally construed to secure just, speedy and economical determination of all issues
presented to the Commission." Commission Rule of Procedure 13 IDAPA 31.01.01.013
Quoting from the Commission s Order No. 29219 (page 4) Idaho Code ~ 62-614
is a broad grant of authority to the Commission to resolve disputes between incumbent
telephone companies, like Qwest, and any other telephone service provider (emphasis
added). If Qwest had its way, it would have the Commission shirk its responsibilities
granted it by the Idaho State Legislature by having other authoritative bodies judicate
interconnection agreements that are within the Commission s authority to act upon as
outlined in Idaho Code ~ 62-602(4) and ~ 62-614. If the Commission did as Qwest has
petitioned, the Commission would not be able to fulfill its other federal and state
fiduciary duties by determining if ample competition is available in the marketplace
before it deregulates Qwest or sets policy and pricing on the triennial review, and SGAT
PAGEDAT A'S REPLY TO QWEST CORPORATION'S LIMITED RESPONSE - PAGE 4
policies. The fact gathering process involved in these duties cannot be relinquished to the
intervener process only.
If the Commission allows Qwest to classify interconnection agreements, that
require mandatory filing by telecommunications companies operating inside the state of
Idaho, as private contracts it would be setting dangerous precedent. It would allow Qwest
to continue its unlawful policy of not filing all agreements that it operates under. This
policy would vacate many established Commission orders and leave other carriers
without recourse.
In the Commission s Order No. 29360 (Case No. QWE- T -02-
, "
In the Matter
of the Application of Qwest Corporation for Deregulation of Basic Local Exchange Rates
in its Boise, Nampa, Caldwell, Meridian, Twin Falls, Idaho Falls, and Pocatello
Exchanges ), page 6 it says:
At Idaho Code ~ 62-602, the legislature codified its express intent
regarding deregulations oflocal telephone service rates:
(1) The legislature of the state ofIdaho hereby finds that universally
available telecommunications services are essential to the health
welfare and economic well-being of the citizens of the state ofIdaho
and there is a need for establishing legislation to protect and maintain
high-quality universal telecommunications at just and reasonable rates
for all classes of customers and to encourage innovation within the
industry by a balanced program of regulation and competition.
(2) It is the intent of this legislature that effective competition throughout
a local exchange calling area will involve a significant number of
customers having both service provider and service option choices and
that actual competition means more than the mere presence of a
competitor. Instead, for there to be actual and effective competition
there needs to be substantive and meaningful competition throughout
the incumbent telephone corporation s local exchange area. (italics
added in text).
(3) It is the further intent of the legislature that the commission, in its
deliberation of deregulation of the incumbent telephone corporations
will examine the impact such deregulation will have on the public
interest in accordance with the general grant of authority given to the
PAGEDATA'S REPLY TO QWEST CORPORATION'S LIMITED RESPONSE - PAGE 5
commission by the legislature and that all parties be allowed to
comment thereon in such proceeding.
In order to verify that there is ample competition in Qwest s territory, the
Commission needs to verify that Qwest is not continuing to use its billing and legal
departments as a weapon to stifle meaningful competition and to suppress competitors
from speaking out about Qwest's inappropriate activities.
It is the Commission s job to regulate the rates charged by Qwest. Therefore, the
Commission is obligated to verify that Qwest is actually charging the correct rates
especially after a company or individual complains of habitual incorrect billing by Qwest.
Qwest has a history of improper billing. Further evidence that Qwest habitually bills
incorrectly, is the fact that Qwest has recently been investigated by the Attorney
General's offices ofIdaho, Oregon, and Arizona, to name a few, for incorrect billing and
then made settlements with the various states' Attorney General's offices.
1 This was addressed by the Administrative Law Judge, Allan Klein, in his "Findings of Fact, Conclusions
Recommendation and Memorandum" Case P-421/C02-197 In the Matter of the Complaint of the
Minnesota Department of Commerce Against Qwest Corporation Regarding Unfiled Agreements
September 20, 2002, ~~375-377 ("Minnesota Memorandum
Because none of the provisions cited in the Complaint have yet been made available to other
CLECs for pick and choose, the harm continues. Qwest' s conduct generally harms competition and the
growth of CLECs in Minnesota.
The Commission should also consider the quid pro quo that Qwest received from its conduct
including the elimination of CLEC participation in regulatory proceedings address the public interest, and
the damage that caused to the furtherance of competition in Minnesota.
Qwest has a history of past violations. In that regard, Qwest tried to avoid its ~252 obligations in
both the MCIWorldcom docket and the DTI docket. In addition, the Commission recently found that Qwest
has engaged in a pattern of anti competitive behavior in In the Matter of the Complaint of AT&T
Communications of the Midwest Against Qwest Corporation, Docket No. P-421/C-01-391"
PAGEDATA'S REPLY TO QWEST CORPORATION'S LIMITED RESPONSE -PAGE 6
Owest Is Contractually Bound To Acceot PaeeData s Selected Method Of
Relief And Is Without Recourse
The parties have agreed in advance through the dispute resolution clause in the
interconnection agreement that three venues of relief are acceptable (arbitration, the
Commission, and the FCC) in lieu of federal and state court.
Qwest is using selective wordsmithing to interpret FCC decisions and Idaho law
in their points 3 and 4 (Qwest's Limited Response , page 10). Qwest said
, "
The FCC
recognized that a state commission may not have responsibility to decide a dispute under
an interconnection agreement if the parties have contractually agreed to a dispute
resolution." (Qwest's Limited Response , page 10) The FCC recognized:
We note that in other circumstances parties may be bound by dispute
resolution clauses in their interconnection agreement to seek relief in a
particular fashion and therefore. the state commission would have no
responsibility under section 252 to interpret and enforce an existing
agreement. In this case, however, the relevant interconnection agreements
do not expressly specify how the disputes shall be resolved. (emphasis
addedl
In this circumstance between PageData and Qwest it is clear that the Commission
does have authority to decide a dispute if that venue is selected by either PageData or
Qwest because the dispute resolution clause does not restrict the dispute resolution
process to arbitration only, but includes options for the Commission and the FCC and
excludes state and federal court. Qwest left it to PageData to choose the mechanism for
relief PageData has selected the Commission option for resolution of the dispute. Qwest
2 Previous Commission Orders (including Order 29219) and Idaho Code ~ 62-615(1) give the Commission
full power to implement the 1996 Tel Act, including interconnection agreements that are filed in Idaho.
In the Matter of Star power Communications, LLC, Petition for Preemption of Jurisdiction of the Virginia
State Corporation Commission Pursuant to Section 252(e)(5) ofth eTelecommunications Act of 1996, CC
Docket No. 00-, Memorandum Opinion and Order, FCC 00-216 (re. June 14, 2000)
PAGEDATA'S REPLY TO QWEST CORPORATION'S LIMITED RESPONSE - PAGE 7
is contractually bound, without recourse, to accept PageData s decision and to take action
to resolve the dispute.
The purpose of the dispute resolution clause is for speedy and cost efficient
resolutions of disputes. Qwest cannot now fight the venue that PageData has chosen after
Qwest refused to participate earlier. Qwest knows that the billing is in error, and
throughout the dispute Qwest has never denied that the billing is in error. Qwest can
curtail the Commission complaint process by simply correcting the billing and handling
the reciprocal compensation payments per the interconnection agreement as PageData has
requested in its Complaint.
Owest's Claim That The Interconnection A2reement Is A Priyate Contract Is
Incorrect
It is illogical and unpersuasive to call the interconnection agreement a private
contract as Qwest is trying to portray. Classifying interconnection agreements as private
contracts would be contrary to public policy and allow Qwest to continue its unlawful
circumvention of federal and state statutes.
Qwest s policy of advancing this theory that interconnection agreements are
private contracts not subject to Commission authority is contrary to Qwest s recent
investigation, penalties and fines for similar beliefs before Qwest received its 271
approval. Qwest has been penalized severely by several state PUCs by this mistaken
interpretation (Minnesota , Arizona, and Iowa, to name a few). It is in the public interest
4 Minnesota Memorandum, ~~ 4
The Department has demonstrated by a preponderance of the evidence that each of Qwest'
violations of 47 US.C. ~ 251, were knowing and intentional. The Department has demonstrated by a
preponderance of the evidence that each of Qwest's violations of 47 D.C. ~ 252, were knowing and
intentional. "
PAGEDATA'S REPLY TO QWEST CORPORATION'S LIMITED RESPONSE - PAGE 8
that the Commission unequivocally stops the advancement of this theory in the state
Idaho.
Equal Treatment
Qwest states that the Commission s decision in this matter will affect no other
telecommunications carrier, but PageData believes that the ramification of this decision
affects the telecommunications industry in the state of Idaho with regard to enforcement
of an ILEC', such as Qwest', obligations to follow through on filed and approved
interconnection agreements to provide the same terms and conditions (47 US.C. ~~ 251
and 252). Federal and state law requires Qwest to treat CMRS carriers who have adopted
the same interconnection agreement the same way with the same terms and conditions as
the other carrier. Therefore Qwest is obligated to treat PageData the same as Arch or
AirTouch that originally signed the interconnection agreement. The Commission is
responsible for enforcing the pricing schedules and reciprocal compensation terms on
interconnection agreements that it approved. (Idaho Code ~ 62-614)
Public Interest
PageData believes that it is in the public interest, using the Commission s Order
No. 29219 as a guideline, that the Commission has the jurisdiction to enforce accurate
billing according to the interconnection agreements that are filed and approved by the
Commission. The Commission outlined, in its Order No. 29219, its authority to
investigate enforcement of interconnection agreements.
PageData believes that the Commission is compelled by Idaho statute to
investigate all commercially filed formal complaints and enforce all provisions of
interconnection agreements that are filed within the state of Idaho to ensure that all
PAGEDATA'S REPLY TO QWEST CORPORATION'S LIMITED RESPONSE - PAGE 9
interconnection agreements filed within the state are not ghost documents filed for show
only and not allow the ILEC to provide terms and conditions other than what is on the
interconnection agreement. The Commission is also obligated to render a finding on
complaints filed by a competitive carrier so the Commission could fulfill its charge under
~ 62-602.
The Idaho Commission Is The Best Authoritatiye Body To Issue A Decision
In This Disoute
Qwest has misinterpreted previous Commission decisions. The Arch
interconnection agreement as discussed in this context is actually an adoption of an
AirTouch agreement that Qwest had previously failed to file in the state ofIdaho. Qwest
filed Arch's adoption of the AirTouch agreement because Qwest had secretly signed an
interconnection agreement that Qwest classified as a confidential billing settlement
agreement with Arch. As part of that agreement Qwest obligated itself to openly file the
AirTouch agreement adopted by Arch in the state ofIdaho.5 This occurred during the
time period ofPageData s hearing before the Commission in Case USW-99-24.
5 "Confidential Billing Settlement Agreement" between Arch and US West, Amended Agreement for
Interconnection, Filed July 29, 2002, Iowa Docket No. NlA-00-32 (FCU-02-2) ~~ 3, 4
INTERCONNECTION AGREEMENTS. Arch agrees to adopt under Section 252(i) of the 1996
Telecommunications Act the interconnection agreements between U S WEST and AirTouch Paging, which
were executed on October 18, 1999, in the following nine states: Arizona, Colorado, Iowa, Minnesota
Nebraska, New Mexico, Oregon, Utah and Washington. The Parties also agree to execute new
interconnection agreements using the aforementioned AirTouch Paging interconnection agreements as a
template in the following five states: Idaho, Montana, North Dakota, South Dakota, and Wyoming. The
Parties agree to execute these interconnection agreements within three (3) business days from the execution
of this Confidential Billing Settlement Agreement. Each of these new interconnection agreements will be
filed with the relevant state public utility commission for approval. The new interconnection agreements
will have en effective date of July 1 2000, and a termination ate of January 18, 2002.
FINAL SETTLEMENT. The Parties hereby fully, completely, and unalterable settle any and all
claims by the Parties relating to or arising out of the Billing Disputes and the FCC Complaints. The Billing
Disputes consist of any and all disputes involving the accounts listed in Exhibit 1 hereto for the period up to
and including April 30, 2000.
PAGEDATA'S REPLY TO QWEST CORPORATION'S LIMITED RESPONSE - PAGE 10
Qwest believes that because of previous Commission rulings that the Commission
agrees with Qwest's unproven allegations that PageData owes Qwest $300 000 and that
previous Commission rulings allowed Qwest to apply Commission determined credits
against any account that Qwest chose. Qwest still believes it continues to have that
authority because PageData did not seek a stay of the Commission s final order, i.
applying credits to inflated billings and interest. It is quite clear that Qwest believes that
its continued misbehavior towards PageData was and is authorized by previous
Commission Orders of how Qwest can apply Commission determined credits and
reciprocal compensation to any account that Qwest chooses. The Idaho Supreme Court
can amend these Orders because of recent rulings (FCC Order DA-02-1731 , July 17
2002 and the Fifth Circuit Decision No. 03-50107 October 2003).
The importance of the time frame is relevant. The Commission decision was
before Qwest and PageData entered into the current interconnection agreement. PageData
believes that it is up to the Commission and no other outside agency to correct Qwest'
misinterpretation since Qwest believes this authority was granted to it by the
Commission.
Since Qwest is continuing to follow through on the Commission s previous
decisions then it is up to the Commission to clarify their previous orders. It was implied
in the Commission s Orders that they wanted Qwest to correct the billing. Qwest did not
have the perpetual right to apply PageData s reciprocal compensation under a new
interconnection agreement to any account or invoice that Qwest chose.
The Commission s Orders were limited and dealt with a specific time period. The
Commission did not address that Qwest had refused to interconnect with PageData at any
PAGEDATA'S REPLY TO QWEST CORPORATION'S LIMITED RESPONSE - PAGE 11
technically feasible point in the LATA. The Commission was concerned that it appeared
that PageData had not paid Qwest. But the Commission did not consider reciprocal
compensation that Qwest owes PageData in its order, nor the additional facilities
requested by PageData, and with reciprocal compensation Qwest owes PageData more
money per month than PageData owes Qwest. This is a fact Qwest has never denied.
Also in its Order the Commission did not validate that Qwest's billing to date was
accurate as Qwest is claiming in their Limited Response.
The Commission s Orders requiring Qwest to refund PageData established the
fact that PageData s account was in good standing when PageData originally requested a
single point of presence (August 29, 1998) and 10 T-ls (September 8, 1998) from Qwest.
Owest's Continued Scheme To Limit Comoetition
In Qwest's Limited Response (pages 4 & 5), Qwest boldly describes its scheme.
Qwest states it has charged PageData, a competitive carrier, wholesale rates for
interconnection services, which is strictly prohibited by the Metzger Letter and the TSR
Order. Wholesale rates allow Qwest to unlawfully bill for Qwest originated traffic with
no mention of reciprocal compensation which would offset any TELRIC rate that Qwest
is obligated to charge by FCC rules. This is the bulk of this imaginary $300 000.
The shenanigans that Qwest has not been forced to explain before an authoritative
body is how a carrier such as PageData, who terminates 100% of Qwest originated
traffic, can owe the originating carrier money at the end of the month on a monthly basis.
Qwest's argument is illogical. Without some kind ofQwest shenanigans, Qwest's claim
that PageData owes Qwest $300 000 falls flat on its face and their claim is void of truth.
PAGEDATA'S REPLY TO QWEST CORPORATION'S LIMITED RESPONSE -PAGE 12
The Fifth Circuit Court affirmed (in a US Court of Appeals decision No. 03-
50107 on October 2003) an earlier decision by a Texas Federal District Court that
Southwestern Bell Telephone Co. (SBC) must deliver without charge, local call traffic it
originates, to a point of interconnection with AT&T Communications of Texas, even if
that point of interconnection is outside the local calling area where the call originates.
This ruling parallels a July 17, 2002 Federal Communications Commission Order (DA-
02-1731) that addressed, in part, a similar issue. Up to now, SBC has been attempting to
charge wireless and other competitive carriers for interconnection facilities more than 14
miles in length or that are used to carry SBC's traffic that originates outside the local
exchange where the interconnection point is located. The Court of Appeals ruling means
that SBC cannot charge for facilities it uses to deliver Intra-LATA call traffic to other
carriers, regardless of the distance it must transport the calls.
Qwest expects to reap windfall profits by forcing PageData and other Idaho
paging carriers to pay unlawful billing until such time as Qwest is forced to follow the
law and fulfill its duty to bill according to FCC mandates and Commission approved
interconnection agreements.
Even though Qwest does not agree with the FCC ruling of July 17, 2002 or the
Fifth Circuit Court of Appeals decision No. 03-50107, upholding an earlier decision by a
Texas Federal District Court, Qwest cannot charge PageData for delivery of any Qwest
originated traffic within the LATA.
Qwest s unlawful policies have had a real impact on competition in the state
Idaho by putting Spud Beep, Progressive Paging, Newtel, Telcar, and InterPage out of
business. These are but a few of the companies that were forced to shut their doors in the
PAGEDATA'S REPLY TO QWEST CORPORATION'S LIMITED RESPONSE - PAGE 13
state of Idaho due in large part to the excessive and unlawful rates charged by Qwest.
These companies never got to take full advantage of their statutory benefits under the
1996 Tel Act.
Other Comolaints And Proceedine:s
This Complaint concerns the time period from PageData s adoption of the Arch
interconnection agreement forward. PageData is not rehashing old disputes, nor disputes
that are currently before the Idaho Supreme Court and federal court as Qwest has
implied.
In its Limited Response Qwest has failed to mention that in its Order the
Commission did not address: (1) unfiled interconnection agreements; (2) failure to
interconnect at a single point of presence; (3) damages; (4) attorney s and consultants
fees; (5) loss of business share; (6) reciprocal compensation; (7) business interference; (8)
mail fraud; and (9) RICO violations. These unresolved matters are currently before
federal court and not a part of this complaint.
The unresolved matters before the Idaho Supreme Court are (1) a 45-mile
restriction; (2) cash refund versus credit; (3) interest rate; (4) math errors; (5) unlawful
charges for delivery of Qwest originated traffic and (6) unfiled interconnection
agreements. These items are also not part ofPageData s current complaint with the
Commission.
No Difficult Math Involved In PaeeData s Request
In the time Qwest took to write their 13-page Limited Response and in the
subsequent time, Qwest could have simply corrected PageData s billing according to the
interconnection agreement and applied the reciprocal compensation to the accounts and
PAGEDATA'S REPLY TO QWEST CORPORATION'S LIMITED RESPONSE - PAGE 14
invoices PageData outlined in its complaint filed with the Commission on October 31
2003. There is no difficult math involved in calculating the proper charges under the new
interconnection agreement.
Elementary math is needed to multiply 24% ofTELRIC rates for the monthly
charges under the interconnection agreement. Then this amount would be subtracted from
the reciprocal compensation, with the remainder reciprocal compensation credits applied
to the accounts and invoices designated by PageData from the date of the new
interconnection agreement forward. Any excess money would be issued to PageData.
The Commission should have the ability in house to review the data supporting
PageData s complaint filed in connection with rates and invoices under the
interconnection agreement the Commission has approved, especially in the early stages
while a dispute is less than $20 000.
It is common knowledge in the communication industry that Qwest uses its billing
and legal departments as a weapon against targeted carriers, such as PageData, as
punitive measures for challenging Qwest s unlawful policies, as pointed out by the
Administrative Law Judge in Minnesota.
In Idaho Code ~ 62-602( 1) the Idaho legislature granted the Commission broad
authority to ensure competition in Idaho before the Commission deregulates Qwest "
protect and maintain high-quality universal telecommunications at just and reasonable
6 Minnesota Memorandum, ~~ 134, 141
Section 252 requires public filing of interconnection agreements to ensure that ILECs do not
discriminate through the use ofunfiled agreements. ~ 252(i) puts every similarly situated CLEC on a level
playing field in terms of its relationship with Qwest, but the statutory mechanism works only if Qwest'
agreements related to pricing and other issues are actually filed with the Commission. The easiest way that
an ILEC can discriminate between CLECs is by adjusting its pricing to favor one CLEC over another.
The testimony of Qwest witness Judy Rixe regarding the "consulting" agreement between Qwest
and Eschelon is not credible. On May 1, 2002, Ms. Rixe testified "Well, number 1, we don t offer
PAGEDATA'S REPLY TO QWEST CORPORATION'S LIMITED RESPONSE-PAGE 15
rates for all classes of customers and to encourage innovation within the industry by a
balanced program of regulation and competition." Qwest has kept PageData from
bringing its innovative technology to market and has hindered PageData from fully
competing in the marketplace. Qwest's violation ofIdaho Code ~ 62-602(1) is well
within the Commission s jurisdiction to correct.
Due Process
Qwest has no authority under the interconnection agreement or the 1996 Tel Act
to unilaterally withhold reciprocal compensation payments from PageData (or any
carrier) or apply PageData s (or any carrier s) reciprocal compensation to billings
actively disputed. This does not mean Qwest is without means of recourse. Under the
dispute resolution clause of the interconnection agreement, Qwest has the ability to take
PageData to arbitration; file a complaint at the Commission where the services are being
provided; or file a complaint at the FCC in order that Qwest may request an order to
demand payment or disconnect services. If the controlling authority issues an order for
PageData to pay and that order is not followed, then Qwest would be able to follow the
recourse dictated in the order. Qwest has refused attempts by PageData to resolve
disputes and denied jurisdiction of the FCC, the Commission, and arbitration.
PageData prevailed in its case USW-99-24 at the Commission by proving that
Qwest had overcharged PageData for termination of Qwest originated traffic. The
Commission did not address the other issues in the complaint that are now before federal
court. PageData prevailed in its informal complaint at the FCC Enforcement Bureau. The
FCC's informal complaint process compelled Qwest to file previously unfiled single
discounts." Her testimony is directly contradicted, however, by Qwest-drafted discount offers she
possessed that Qwest produced to the Department only after Ms. Rixe had been cross-examined.
PAGEDATA'S REPLY TO QWEST CORPORATION'S LIMITED RESPONSE - PAGE 16
point of presence amendments and to enter into the AirTouchiArch interconnection
agreement (as filed in Iowa) with PageData and agree to facilities installation (which are
still pending).
If the Commission allows Qwest to unilaterally withhold payments and to fight
jurisdiction of the three options available in the dispute resolution clause of the
interconnection agreement (arbitration, the Commission, and the FCC), this extends
Qwest's monopoly in the marketplace and gives an incumbent carrier an unfair advantage
in the marketplace and prevents speedy resolutions of disputes. The law was not designed
for the incumbent carrier to win through stonewalling. (Commission Rule of Procedure
13 IDAPA 31.01.01.013)
Qwest had the option to initiate arbitration, file a complaint at the Commission, or
to go to the FCC. Qwest chose not to act according to the dispute resolution clause, but
instead chose to withhold money from PageData and not to settle. Now that PageData
exercised its right to go to the Commission for resolution of the dispute, Qwest claims
that PageData should have requested arbitration. Under the dispute resolution clause
Qwest has no right to tell PageData by which method to seek relief The arbitration
method of dispute resolution does not supercede the other two options.
In its Limited Response, Qwest has acknowledged reciprocal compensation is
now due PageData, but Qwest says it is applying it towards PageData s accounts.
However, PageData has not seen any record of Qwest applying reciprocal compensation
credits to PageData s accounts over the past nine months. The Commission should
require Qwest to produce documentation supporting their claim.
PAGEDATA'S REPLY TO QWEST CORPORATION'S LIMITED RESPONSE - PAGE 17
Owest Has Not Disconnected Facilities Per Pa2eData s ReQuest
Qwest has no authority to continue to charge for those facilities that have been
made inoperable by Qwest and have been requested in writing by PageData to be shut
off. Qwest continues to invoice for these facilities, at inflated rates, along with interest
and late charges. The Commission should immediately put a halt to this practice. A
carrier should not have to go to arbitration, the Commission, or the FCC in order for
Qwest to disconnect facilities requested in writing by the carrier.
CONCLUSION
It is Qwest s fiduciary duty to render lawful billings according to interconnection
agreements on file with the Commission and according to FCC regulations. It is the
Commission s duty to approve interconnection agreements, ensure that all parties are in
compliance with the interconnection agreement, ensure equal treatment, hear complaints
oversee the triennial review and the SGA T, and the regulation of Qwest.
According to federal and state law, the Commission has the jurisdiction and is
obligated to review all complaints filed against Qwest in this timeframe. This gives the
Commission first hand knowledge of any impropriety that Qwest promulgates in the
marketplace, so the Commission does not depend solely on the intervener process to
ensure innovation and true competition is available before Qwest is granted de-
regulation.
It is the intent of Commission Rule of Procedures No. 13 and 47 US.C. ~ 252 to
resolve disputes in a speedy and expeditious manner with the right of either party to
exercise any of the three options available in the dispute resolution clause of the
interconnection agreement.
PAGEDATA'S REPLY TO QWEST CORPORATION'S LIMITED RESPONSE - PAGE 18
Qwest is obligated itself to use the dispute resolution clause before it can take any
action against a co-carrier, but Qwest neglected to exercise any of its three options under
the dispute resolution clause. After Qwest has failed to exercise its options, Qwest cannot
now dictate to PageData which course of action PageD at a should use to seek relief
Qwest is contractually obligated by the interconnection agreement not to fight
jurisdiction, to accept the method for dispute resolution chosen by PageData, and to
actively participate in the dispute resolution process to resolve the dispute. In fact, Qwest
should have participated earlier in getting the dispute resolved by simply correcting the
billing or agreed on one of the methods for dispute resolution. If no consensus was
reached, a coin could have been flipped to decide the method. This was not done.
Therefore, Qwest is in violation of the interconnection agreement and does not
have any legal basis in law to unilaterally withhold PageData s reciprocal compensation
payments or apply reciprocal compensation credits to any account or invoice that Qwest
chooses without invoking one of the three options in the dispute resolution clause. Qwest
can only apply the reciprocal compensation to accounts and invoices that PageData
designates and pay any remainder to PageData directly.
The Commission should reject Qwest's continuing attempts to stonewall the
dispute, require Qwest to follow the provisions of the dispute resolution clause, exercise
its jurisdiction over interconnection agreements in Idaho, have Qwest disconnect the
facilities requested, and require Qwest to answer the complaint.
RESPECTFULLY SUBMITTED this 12th day of December, 2003.
PAGEDATA'S REPLY TO QWEST CORPORATION'S LIMITED RESPONSE - PAGE 19
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 12th day of December, 2003, I caused to be
served a true and correct copy of the foregoing by the method indicated below, and
addressed to the following:
Jean Jewell
Idaho Public Utilities Secretary
472 W. Washington Street
PO Box 83720
Boise, ID 83720-0074
US. Mail Fax _- By Hand
William 1. Batt
Marshall Batt & Fisher, LLP
US Bank Plaza, Sth Floor
101 S. Capitol Blvd.
Boise, ID 83701
US. Mail _Fax ~ByHand
Adam Sherr
Qwest
1600 7 Avenue - Room 3206
Seattle, W A 98191
- US. Mail Fax By Hand
PAGEDATA'S REPLY TO QWEST CORPORATION'S LIMITED RESPONSE - PAGE 20