20050210Petition for Reconsideration.pdf

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JOSEPH MCNEAL, d/b/a P AGEDA T
O. Box 15509
Boise, ID 83715
[phone]
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UTI LIT tES~'COr1'M is S ION
Attorney Pro Se
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
JOSEPH B. MCNEAL, d/b/a P AGEDA T A
Respondent.
CASE NO. QWE-O3-Complainant
vs.PETITION FOR
RECONSIDERATION
QWEST CORPORATION
PageData respectfully requests that the Idaho Public Utilities Commission
Commission ) reconsider its decision in this matter in Order No. 29687 under
Procedural Rule 331 and the Commission discretion. IDAPA 31.01.01.331.01.
PageData contends the Order is unreasonable, unlawful, erroneous , and not in conformity
with law, which will be discussed below.
The Commission s ruling makes the dispute resolution clause (Section 13.14) of
the interconnection agreement unconscionable. The Commission s ruling unreasonably
limits PageData s choices for dispute resolution and significantly advantages Qwest.
In reaching its decision, the Commission erred by relying upon several cases that
are not applicable. International Assoc. of Firefighters, Local 672 v. City of Boise, 136
PETITION FOR RECONSIDERATION - PAGE
Idaho 162, 168, 30 P.3d 940, 946 (2001) and Driver v. 51 Corportion, 139 Idaho 423
426,80 P.3d 1024, 1027 (2003) quoting Hecla Mining Co. v. Bunker Hill Co., 101 Idaho
557, 562, 617 P.2d 861 , 866 (1980). No rational relationship can be made between these
cases cited and PageData s complaint against Qwest. For example, the International
Association of Firefighters' arbitration decision is not required by federal and state statute
to be publicly available for review with the same terms and conditions being made
available to every other fire department in the state of Idaho, as is the case with
interconnection agreements under the 1996 Telecommunications Act.
Section 252 gives the state commissions the exclusive right to make first instance
determinations with regard to interconnection disputes, which supercedes the AAA
arbitration option unless both parties agree otherwise. Unlike the cases cited by the
Commission in support of their decision, Section 252(i) requires that the resolution of a
reciprocal compensation dispute be filed and approved at the Commission as a
clarification or amendment to the interconnection agreement and available for adoption
by other carriers.
Currently there is no mechanism in Idaho statutes to incorporate a private AAA
arbitration decision into filed interconnection agreements to make the decision available
to other carriers in a similar situation, such as Radio Paging and WaveSent LLC to name
just two, under Section 252(i). The AAA arbitration decision would not be legally
binding for adoption under Section 252(i) and therefore would be a violation of the 1996
Telecommunications Act. There is also no mechanism for the Commission to approve the
AAA arbitration decision. The only two options in the dispute resolution Section 13.14 of
PETITION FOR RECONSIDERATION PAGE 2
the interconnection agreement that will satisfy Section 252, is a formal complaint either
filed at this Commission or the FCC.
The Federal Arbitration Act (FAA) and the interconnection agreement direct the
Commission to apply federal law and state contract law when addressing disputes in
arbitration clauses. 9 U.C. ~ 2. But here, not only is there an arbitration portion as an
option, the 1996 Telecommunications Act gives state commissions the exclusive right to
make determinations in the first instance.
The US Supreme Court has recognized that the defense of unconscionability is
available to a party challenging an arbitration agreement.
(G)enerally applicable contract defenses, such as fraud, duress or
unconscionability, may be applied to invalidate arbitration agreements
without contravening (the Commission). Doctor s Assocs.Inc.
Casarotto 517 U.S. 681, 687 (1996)
In other words, state contract law applies to arbitration clauses. This principle is
incorporated into the federal substantive law of arbitration.
An Agreement to arbitrate is . . . enforceable, as a matter of federal law
save upon such grounds as exist at law or in equity for the revocation of
any contract.' . . . Thus state law , whether of legislative or judicial origin
is applicable if that law arose to cover issues concerning the validity,
revocability, and enforceability of contracts generally. (emphasis in
original, citations omitted) Perry v. Thomas (1987) 482 U.S. 483, 492-
Under Idaho Statute 28-3021 PageData does hereby request a hearing. PageData
claims the arbitration clause is unconscionable and requests an opportunity to present
1 Idaho Statute 28-302. UNCONSCIONABLE CONTRACT OR CLAUSE. (1) If the court as a matter of
law finds the contract or any clause of the contract to have been unconscionable at the time it was made the
court may refuse to enforce the contract, or it may enforce the remainder of the contract without the
unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any
unconscionable result.
(2) When it is claimed or appears to the court that the contract or any clause thereof may be
unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its
commercial setting, purpose and effect to aid the court in making the determination.
PETITION FOR RECONSIDERATION PAGE 3
evidence as to the commercial setting, purpose, and effect to aid the Commission in
making a determination.
Since Qwest drafted the unconscionable arbitration clause, Qwest should not
receive the Commission s assistance in rewriting the interconnection agreement.
The Commission ruling made the arbitration clause procedurally
unconscionable. A number of courts have recently struck down arbitration clauses on the
grounds that the fees imposed by the AAA's Commercial Rules are prohibitive. Those
seeking to enforce arbitration clauses frequently argue that no arbitration clause invoking
the AAA's rules may ever be held to be prohibitively expensive because the AAA's rules
supposedly incorporate various safeguards against excessive fees. Recently, however
several courts have held that the AAA' s rules do not provide adequate protection against
excessive arbitral fees. In Phillips v. Associates Home Equity Services, Inc.for example,
the court stated:
(D)efendants argue that the AAA's Commercial Rules contain certain
safeguards to protect Philips against incurring exorbitant costs. These
arguments are unavailing. . . . (D)efendants note that the arbitrator at his or
her discretion can assess all expenses to one party at the conclusion of the
case. But that is nothing more than an argument that there exists some
possibility that Philips ultimately may not have to bear a prohibitively
expensive portion of the arbitration costS.
In this case, it is the Commission that has exclusive rights to settle interconnection
disputes in the first instance. Again, those results are to be publicly available for adoption
under Section 252(i) by all carriers in similar situations. An arbitrator s ruling is not, and
therefore, not in the public interest for equal access to publicly available documents and
to encourage telecommunications competition in the state of Idaho.
2 Phillips v. Associates Home Equity Services, Inc., 179 F. Supp 2d 840, 846, 847 (N.D. ILL 2001)
(citation omitted).
PETITION FOR RECONSIDERATION PAGE 4
The interdependent aspects of the arbitration clause should not be severed. In
effect, the Commission unlawfully blue-penciled the dispute resolution Section 13.14 of
the interconnection agreement and rewrote it. Severing allows the Commission to treat
independent clauses independently, whereas blue-penciling implies actual editing of the
interdependent sections to fix the interconnection agreement. As the drafter of the
interconnection agreement Qwest has the obligation and responsibility to make the
contract language clear.
The difference between the options to go to the Commission, FCC, or AAA
arbitration should be read in light of the 1996 Telecommunications Act to promote
competition and the public interest to make interconnection agreements publicly available
for adoption under Section 252(i). Compelling AAA arbitration, which cannot
accomplish the aspects of Section 252(i), is unlawful editing of the interconnection
agreement. The Commission s Order deprives PageData of its judicial economical and
speedy ruling. There is no Idaho statute to make an AAA arbitration ruling available to
other similarly situated carriers as required by Section 252. This is the exclusive domain
of state commissions.
Conclusion and Prayer for Relief
Under Idaho Code 28-302 and IDAPA 31.01.01.331.01 , PageData requests a
hearing to present additional evidence. The evidence that will be presented includes
Supreme Court cases that observed there is a fundamental requirement that arbitration
allows parties to effectively vindicate their statutory rights. Further the court proclaimed
repeatedly that judicial review is a guarantor of effective statutory rights. Arbitration in
this case would not guarantee PageData s and other Idaho carriers' statutory rights
PETITION FOR RECONSIDERATION - PAGE
granted by the 1996 Telecommunications Act to publicly display for review and adoption
terms and conditions awarded by any arbitrator. For all the foregoing reasons, PageData
requests that the Commission grant reconsideration by rescinding, modifying or changing
the Order No. 29687.
Respectfully submitted this 9th day of February, 2005.
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PETITION FOR RECONSIDERATION PAGE 6
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 9th day of February, 2005, 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
Hand Delivery
S. Mail
Facsimile
Email
William J. Batt
Batt & Fisher
S. Bank Plaza, Suite 500
101 S. Capitol Boulevard
Boise, ID 83701
Hand Delivery
X U.S. Mail
Facsimile
Email
PETITION FOR RECONSIDERATION PAGE 7