20041005ATT Comments.pdf

CEI ED IT)
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ILED
EFO RE THE ID AH PUB LI C UTILITIES CO MMISS I ON
20011 OCT - S r'i J f:
IN THE MATTER OF QWEST
CORPORATION AND MCIMETRO
ACCESS TRANSMISSION SERVICES
LLC'S MASTER SERVICE
AGREEMENT FILING
) CASE NO. QWE-04-
u r IL I T j E s coi,SrON
AT &T'S COMMENTS
Pursuant to Order No. 29596 , AT&T Communications of the Mountain States
AT&T") hereby submits comments on Master Services Agreement dated July 16 2004
between MClmetro Access Transmission Services, L.C. ("MCI") and Qwest
Corporation ("Qwest").
INTRODUCTION
On July 20, 2004, Qwest posted a general notification 1 on its web site advising
that on July 16, 2004, Qwest and MCI signed a negotiated commercial agreement and an
amendment to MCI's existing interconnection agreement ("ICA"
).
According to the
announcement, the agreements became effective on Friday, July 16, 2004, the day the
agreements were executed. The notification further asserts "(tJhe commercial agreement
covering Qwest Platform PlusTM ("QPp"J is not subject to Section 252 requirements and
therefore does not fall under the jurisdiction of any state regulatory commission.
Nevertheless , the notification states further "Qwest provided a courtesy copy of the
commercial agreements to its in-region state commissions." Apparently still believing it
1 GNRL.O7.20.04.000460.QPP. A copy is attached as Exhibit A to AT&T's Response.
has non-discrimination obligation , Qwest notes that it will make the QPP commercial
agreement available to any interested competitive local exchange carrier ("CLEC"
Regardless of Qwest's position concerning "commercial" agreements , on August
2004, MCI filed two agreements: (1) Amendment to Interconnection Agreement for
Elimination of UNE-, Implementation of Batch Hot Cut Process and Discounts; and (2)
Master Service Agreement for the Provision of Qwest Platform Plus Service
Commercial Agreement"). MCI's filing describes the terms of the agreements and asks
the Idaho Public Utilities Commission to approve both the amendments to the ICA and
the QPP Commercial Agreement.
AT &T believes both the Commercial Agreement and the amendments to the ICA
must be filed with the Commission for approval pursuant to 47 U.C. g 252(e)(1), 47
C. g 271. AT&T takes no position whether the agreements meet the standards for
approval contained in Section 252(e)(2)(A).
ARGUMENT
Section 252 of the Act Requires that Qwest file its QPP Commercial
Agreement with the Idaho Commission for Approval.
The Commercial Agreement Creates an Ongoing Obligation Between
the Parties, and Thus, it is An Interconnection Agreement.
Qwest's Commercial Agreement with MCI is an "interconnection agreement
adopted by negotiation" that must be filed with the state commissions for approval
pursuant to Section 252(e)(1)? Although Qwest's notification claims that its agreement
is a "commercial" agreement negotiated outside the requirements of the
Telecommunications Act of 1996, the Act clearly requires the Commercial Agreement to
2 UNE-P is an unbundled platform consisting of switching, loop and transport.
47 U.C. 9252(e)(l).
be filed with the Idaho Commission to ensure that the agreement is nondiscriminatory,
consistent with the public interest, and available to others.
The statutory language is clear on its face:
Any interconnection agreement adopted by negotiation or arbitration shall
submitted for approval to the State commission.
The statute does not state that only agreements adopted under Sections 251(b) and (c) of
the Act need be filed for approval. Moreover, the FCC has declined to adopt a definitive
interpretation of the term "interconnection agreement" as used in Section 252(e).
Rather, the FCC has left it up to the states to make those determinations on a case-by-
case basis.
Although the FCC has not defined the outer boundaries of the filing requirement
it has made clear that the scope of the filing requirement is exceedingly broad. The FCC
held that the "basic class of agreements that should be filed" - but by no means the only
ones that should be filed - are those that establish "ongoing obligations pertaining to
resale, number portability, dialing parity, access to rights-of-way, reciprocal
compensation, interconnection, unbundled network elements, or collocation.7 The FCC
recognized that certain classes of agreements need not be filed under Section 252, but
those classes are extremely narrow and do not apply here; they are: (1) agreements
concerning dispute resolution and escalation provisions whose terms are otherwise
47 D.c. 9 252(e)(l) (emphasis added).
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), WC Docket
No. 02-89, Memorandum Opinion and Order, FCC 02-276 (reI. Oct. 4, 2002) Qwest Declaratory
Ruling at en 10 ("We decline to establish an exhaustive, all-encompassing 'interconnection agreement'
standard.
) .
Id. Based on their statutory role provided by Congress and their experience to date, state commissions
are well positioned to decide on a case-by-case basis whether a particular agreement is required to be filed
as an 'interconnection agreement' and, if so, whether it should be approved or rejected.
Id. at en 8.
publicly available; (2) settlement agreements that do not affect an incumbent LEC'
ongoing obligations under Section 251; (3) forms used to obtain service~ and (4) certain
agreements entered into during bankruptcy. 8 The Commercial Agreement does not fall
within any of the exceptions.
It does, however, fall within the "basic class of agreements that should be filed.
That is , the Commercial Agreement augments the amended ICA by creating ongoing
obligations to 9 among other things: (a) provide loops, transport and switching or what is
newly defined as the QPP service;lO (b) accomplish Qwest performance targets~l1 and (c)
pay the recurring and nonrecurring charges for QPP.12 As noted, QPP service consists of
the "Local Switching Network Element" (including the basic switching function, port and
features , functions and capabilities of the switch) and the "Shared Transport Network
Element" in combination, at a minimum.13 "As part of the QPP service, Qwest agrees to
combine the Network Elements that make up QPP service with Analog/Digital Capable
Loops, with such Loops (including services such as line splitting) being provided
pursuant to the rates, terms and conditions of the MCI's ICAs ... .14 Thus, the
Commercial Agreement creates ongoing obligations between the parties that interoperate
within both the ICA and the very same networks that are also the subject of the ICA.
Id. at enen 9 & 12-14.9 The Commercial Agreement states that it creates an ongoing obligation in its whereas clause; it says:
WHEREAS to address such uncertainty and to create a stable arrangement for the continued availability to
MCI from Qwest of services technically and functionally equivalent to the June 14 2004 UNE-
arrangements the parties have contemporaneously entered into ICA amendments..." Commercial
Agreement at 1.
10 Commercial Agreement, Service Exhibit 1.
11 Id. at Attachment A to Service Exhibit
12 QPP Rate Sheet for Idaho.13 Commercial Agreement, Service Exhibit 1 at 9 1.
14 Id.; see also Service Exhibit 1 at 9 1.2.
In short, the result of these agreements is that the existing ICA is amended to add
a batch hot cut process; provide that Qwest does not have to offer unbundled mass market
switching, enterprise switching and unbundled shared transport network elements
contained in the ICA; and provide that MCI will not order unbundled mass market
switching, enterprise switching and unbundled shared transport network elements
contained in the existing ICAs. In lieu of purchasing these network elements under the
terms of its ICA, MCI can purchase their replacements out of the Commercial
Agreement. The replacements parts are the same as the former unbundled network
elements but the prices MCI now pays under the Commercial Agreement are different.
B. The Commercial Agreement Must Be Filed Under Federal Law to
Ensure Non-Discriminatory Conduct.
As a practical matter, the definition of an interconnection agreement and the
attendant filing requirement must be broad enough to permit state commissions to
perform the reviewing function that Congress requested of them in Section 252, and, in
the case of the Idaho Commission, it must be broad enough to accomplish the Legislative
oversight demanded in I.C. g 62-609 (prohibiting preferences as to "any" prices or
charges). Without adhering to some filing requirement and approval process, these
statutory provisions are effectively nullified.
For example, Congress expressly required the state commissions to ensure that
incumbents do not enter into negotiated agreements that "discriminate against a
telecommunications carrier not a party to the agreement.,,15 Indeed, non-discrimination is
a bedrock principle of the Communications Act in general.16 Accordingly, Section 252
necessarily requires the filing of all agreements involving network elements or other
47 U.C. 9252(e)(2)(A)(1).
16
See MCI Telecommunications Corp. v. American Tel. Tel. Co.512 U.S. 218 229-31 (1994).
similar arrangements provided to similarly situated carriers; otherwise, state commissions
will have no way of ensuring that incumbents are not entering into discriminatory or
preferential secret agreements with certain carriers regarding such elements. This is true
regardless of whether the incumbent is offering those network elements voluntarily or
pursuant to an FCC requirement.
The FCC has consistently recognized that the requirement of filing all agreements
for approval by the state commissions is the core statutory protection against
discriminatory treatment. For example, in the Local Competition Order 17 the FCC noted
that "(rJequiring all contracts to be filed also limits an incumbent LEC' s ability to
discriminate " because it allows all "carriers to have information about rates, terms, and
conditions that an incumbent LEC makes available to others.18 Similarly, in the Qwest
NAL the FCC noted that Section 252's filing requirements "are the first and strongest
protection under the Act against discrimination by the incumbent LEC against its
competitors.19 Indeed, the FCC recognized that failure to file agreements "could lead to
a permanent alteration in the competitive landscape or a skewing of the market in favor
of certain competitors.2o In an environment in which the incumbent LEC is offering
network elements voluntarily, rather than pursuant to nationally uniform minimum
standards, that risk of discrimination increases and the vigilance of the state commission
under Section 252 becomes all the more important.
Under these principles, there is no doubt that the MCI agreement must be filed
with the state commission for approval under Section 252(e)(1). Qwest is providing
17 Implementation of the Local Competition Provisions of the Telecommunications Act of 1996, Docket No.
96-98, First Report and Order, 11 FCC Rcd. 15499 (1996) Local Competition Order
18 Id. at en 167; see also, id. at en 151 (noting the anticompetitive dangers of nondisclosure agreements).
Qwest NAL at en 46.
20 Id. en 43.
network elements to MCI, albeit "voluntarily" and on terms and rates that are "without
regard to the standards of (Sections 251 and 252J.21 Section 252 requires that such an
agreement be filed with the state commission, however, so that the state commission can
fulfill its statutory mandate to ensure that the agreement is nondiscriminatory.
In short, the Commercial Agreement must be filed with the Commission for
approval. At a minimum, if there is a question as to whether the agreement should be
filed, the FCC has held that the state commissions should make those determinations on a
case-by-case basis 23 and this Commission would be wise to demand filing.
II.Section 271 of the Act Requires the Filing of Commercial Agreements
In order to prevent unlawful discrimination , 47 V.C. g 271 requires Qwest to
file for Commission approval agreements for the provision of mass market switching,
shared transport and of other network elements. First, independent of any impairment
determination pursuant to 47 U.C. g 251 , Qwest's authority to provide in-region long
distance service in Idaho is expressly conditioned upon its non-discriminatory provision
to its competitors of essential network elements and services contained in 47 U.
g 271(c)(2)(B), including local switching and shared transport. The failure by Qwest to
continue providing these elements and services risks revocation of its Section 271
authority ?4 Furthermore, Qwest must offer competitive checklist items pursuant to
binding agreements that have been approved under section 252 ... .
21 There is no question that the Local Switching Network Element and the Shared Transport Element
described in, and provided under the terms of, the Commercial Agreement fall within the definition of
network element contained in the Act. 47 D.C. 9 153(45).
22 See e., Qwest NAL at en 47 ("(T)he potential for such discrimination underlies our concerns regarding
Qwest's apparent violations of Section 251(a)(1)," even if there is in fact no discrimination.
23
Qwest Declaratory Ruling at en 10.
47 D.c. 927l(d)(6)(A)(iii).
47 D.C. 9 27 1 (c)(1)(A) (emphasis added).
Section 271(c)(2)(A) establishes the requirements by which a BOC may be
authorized to offer in-region long distance service. One of the requirements is the filing
and approval of interconnection agreements under Section 252.
(A) AGREEMENT REQUIRED.A Bell operating company meets the
requirements of this paragraph if, within the State for which the
authorization is sought-
(i)(1) such company is providing access and interconnection pursuant to
one or more agreements described in paragraph (l)(A),
(II) such company is generally offering access and interconnection
pursuant to a statement described in paragraph (l)(B), and
(ii) such access and interconnection meets the requirements of
subparagraph (B) of this paragraph.
Significantly, Section 271(c)(2)(A) is written in the present tense. At any given
moment, Qwest is qualified to provide long-distance service only if it is complying with
two essential requirements: (1) "access and interconnection" must be offered "pursuant
to one or more agreements described in (Section 271(c))(1)(A)),,26 and (2) such "access
and interconnection" must include the checklist items specified in subparagraph (B).
The agreements described in Section 271(c)(1)(A) that constitute a requirement
for Qwest s authority to offer in-region long distance service are interconnection
agreements approved under Section 252. Section 271(c)(l)(A) states:
(c) Requirements for providing certain in-region interLATA services
(1) Agreement or statement
A Bell operating company meets the requirements of this paragraph if it
meets the requirements of subparagraph (A) or subparagraph (B) of this
paragraph for each State for which the authorization is sought.
(A) Presence of a facilities-based competitor
A Bell operating company meets the requirements of this subparagraph
if it has entered into one or more binding agreements that have been
approved under section 252 of this title specifying the terms and
47 D.C. 927l(c)(2)(A)(i)(I). Alternatively, under (c)(2)(A)(i)(II) such "access and interconnection
can be provided pursuant to a statement of generally available terms (SGAT) where no request for access
and interconnection is made.27 47 D.c. 9271(c)(2)(A)(ii).
conditions under which the Bell operating company is providing access
and interconnection to its network facilities for the network facilities of
one or more unaffiliated competing providers of telephone exchange
service (as defined in section 153(47)(A) of this title, but excluding
exchange access) to residential and business subscribers.
The agreements under which Qwest must offer mass market switching and
transport to requesting carriers, therefore, must be agreements that are filed with the
Commission and approved pursuant to Section 252.
The FCC has already addressed BOC attempts to evade the disclosure, review and
opt-in protections of Section 252. Specifically, Qwest attempted to avoid its Section 252
obligations by requesting a declaratory ruling from the FCC that Section 271 network
elements were not required to be provided in filed interconnection agreements. The FCC
rejected Qwest's argument , determining that Section 252 creates a broad obligation to file
agreements, subject to specific narrow exceptions that do not exempt Section 271
elements. In the Qwest Declaratory Ruling, the FCC made clear that any agreement
addressing ongoing obligations pertaining to unbundled network elements - and the
access and unbundling obligations of Section 271 fall squarely within that definition
must be filed in interconnection agreements subject to Section 252 and also that, to the
extent any question remains regarding those obligations, the state commissions are to
decide the issue.
Further, the FCC also recognized that it is essential that BOCs demonstrate
compliance with Section 271 through binding and lawful interconnection agreements
containing specific terms and conditions implementing the competitive checklist. The
FCC has made it clear that when a CLEC requests a particular checklist item, a BOC "
providing" that item and is complying with Section 271(c)(2)(A) only if it has a "concrete
47 D.C. 9 27 1 (c)(1)(A) (emphasis added).
and specific legal obligation to furnish the item upon request pursuant to state-approved
interconnection agreements that set forth prices and other terms and conditions for each
checklist item.
Accordingly, in addition to its duty to negotiate found in Section 251(c)(1), Qwest
having volunteered to meet the conditions required of a BOC that seeks to provide
interLA T A services, is also obligated by Section 271 to negotiate and (if necessary)
arbitrate the particular terms and conditions of each of the Section 271 competitive
checklist items that CLECs may request, which items include mass market switching and
shared transport. If Qwest refuses to do so and thus does not enter into binding
interconnection agreements under Section 252 regarding mass market switching and the
other competitive checklist items, then Qwest would plainly have "cease(d) to meet" one
of the essential conditions of section 271 30 namely, an "agreement(J that has been
approved under section 252... .
III.Other State Commissions Require Filing of Similar "Commercial"
A greemen ts.
Numerous state commissions have recently considered the issue of whether
commercial agreements must be filed with the State Commission for approval." The
states have uniformly found that such agreements must be filed. For example, in
response to the news that SBC Communications, Inc. ("SBC") and Sage Telecom, Inc.
Sage ) recently executed "commercial agreements " the California Public Utilities
Commission required SBC to file the Sage agreement with the Commission. The
29
Application of Ameritech Michigan Pursuant to Section 271 of the Communications Act of 1934
amended, to Provide In-Region, InterLATA Services in Michigan CC Docket No 97-137, Memorandum
Opinion and Order, FCC 97-298 (ReI. Aug. 19, 1997) at en 110 (emphasis added).
47 D.C. 9271(d)(6).
31
See 47 D.C. 9 271(c)(2)(A) ("Agreement required"(emphasis added).
Commission noted: "In order for the Commission to perform this statutory duty (under
Section 252(e)(2) of the Act), the interconnection agreement must be formally filed with
the Commission and open to review by any interested party.
Likewise, the Michigan Public Service Commission issued an Order requiring
SBC and Sage to file their agreement for review. The Commission held that under the
Act "interconnection agreements arrived at through negotiations must be filed with and
approved by (the state Commission).33 The Chair of the Michigan Commission also
stated that the State commission "must be able to review the terms of this agreement and
any associated agreements if it is to fulfill its responsibilities under state and federal law
to ensure that the agreement is in the public interest and does not discriminate against
other providers. ,,
Similarly, on May 5 , 2004, the Public Utilities Commission of Ohio directed SBC
and Sage to file comments and legal analysis supporting their positions that they did not
have to file the new agreement with the Commission. The Chairman of the Commission
stated that the action was necessary "to sort out (the Commission s) obligations under the
Telecommunications Act as they apply to these agreements.35 And on May 11 2004
the Missouri Public Service Commission ordered SBC and Sage to make a filing to
explain why the "commercial agreements" should not be filed and considered by the
Commission pursuant to Sections 251 and 252 of the Act.
32 Letter from Randolph L. Wu, State of California Public Utilities Commission, to SBC (April 21 , 2004).
33 Case
No. 14121 Michigan Public Service Commission (April 28, 2004).
34 Michigan Public Service Commission, Press Release April 28, 2004 (available at
http://www.michigan.gov/mpsc)
35 Public Utilities Commission of Ohio News Release, May 5, 2004 (available at www.puc.state.oh.
36 In re Agreement Between SBC Communications, Inc. Sage Telecom, Inc.Order to Show Cause, Mo.
C. Case no. TO-2004-0576 (May 11 2004).
As with the others, by order dated May 13, 2004, the Public Utilities Commission
of Texas ordered SBC and Sage to file their agreement. Citing the FCC'Qwest
Declaratory Ruling, the Texas Commission held that "the filing and review requirements
are 'the first and strongest protection under the Act against discrimination by the
incumbent LEC against its competitors. ", And on July 27 , 2004, the Missouri Public
Service issued an order rejecting the amendment to the Sage existing interconnection
with SBC. The Commission found that the amendment that was filed with the
Commission was indivisible from the commercial agreement that had not been filed, and
neither agreement is a "stand-alone" agreement.
The amendment is clearly related to the commercial agreement. Each
references the other. They were negotiated at the same time, and executed
within a few days of each other. The amendment, by its terms, will be
void in any state in which the commercial agreement becomes inoperative.
Perhaps most telling, the commercial agreement itself refers to the
indivisible nature" of the commercial agreement and the amendment.
From these facts , the Commission concludes that the two are indivisible;
that is, neither one is a stand-alone agreement.
Also, on August 2, 2004, the Kansas Corporation Commission approved the
amendment to Sage s existing interconnection agreement with SBC. However, it
withheld judgment on whether the commercial agreement must be filed for approval
pursuant to Section 252 until the Federal Communications Commission rules on SBC'
37 Agreement between SBC Communications, Inc. and Sage Telecom, Inc.Case No. To-2004-0576;
Amendment Superceding Certain 251/252 Matters between Southwest Bell Telecom, L.P., and Sage
Telecom, Inc.Case No. TO-2004-0584, Order Consolidating Cases, Rejecting Amendment to
Interconnection Agreement, and Denying Intervention (July 27,2004) at 3. The Missouri Commission did
not order SBC or Sage to file the commercial agreement, leaving the decision to management. However
based on the Order, it is unlikely the Commission will approve the amendment to the interconnection
agreement without the commercial agreement also being filed for approval. The MCI ICA amendment and
the Commercial Agreement are also indivisible. See ICA Amendment at 9 2.6 and Commercial Agreement
at 9 23.
emergency petition. SBC has asked the FCC to determine whether the commercial
agreement needs to be filed with the state commissions, pursuant to Section 252.
Like the individual state commissions, NARUC also stated that SBC and Sage should be
required to file the agreements with the respecti ve state commissions. Commissioner
Stan Wise, NARUC President and Commissioner of the Georgia Public Service
Commission , urged SBC and Sage to file the negotiated interconnection agreements for
approval "pursuant to g 252(e) of the Act in the States where they are effective as
required by g 252(a)(1).39 Mr. Wise, NARUC President, noted "Rapid filing and
approval by the respective State commissions can only facilitate the ongoing industry
negotiations.
Finally, the Public Service Commission of Utah recently issued an order finding
that the Commercial Agreement should be filed and that the Commission does have
authority to review and approve the Commercial Agreement. The Order is attached
hereto as Exhibit B.
Consequently, state commissions are not prohibited from reviewing and
approving the Commercial Agreement. Moreover, the FCC has requested comments on
this very issue. On August 20, 2004 the FCC released its Order and Notice of Proposed
Rulemaking in response to the Court of Appeal's decision vacating the FCC'Triennial
Review Order. The FCC "incorporate ( d) three petitions regarding incumbent LEC
obligations to file commercial agreements, under section 252 of the Act, governing
38 Application of Sage Telecom, Inc. for Approval of the K2A Interconnection Agreement Under the
Telecommunications Act with Southwestern Bell Telephone Company, Docket No. 01-SWBT-I099-IAT,
Order (Aug. 2 2004). The Kansas Staff found the amendment to the interconnection agreement and the
commercial agreement to be "inextricably intertwined." Order at 39 Letter from Stan Wise, NARUC President, to Sage and SBC, April 8,2004.
40 Id.
access to network elements for which there is no section 251(c)(3) unbundling obligation
...
" in its latest rulemaking.41 If the issue had been resolved, the FCC would not be
seeking comments on the issue.
CONCLUSION
It is clear that the Act requires Qwest to negotiate with CLECs for the provision
of network elements and other services. The Act also permits Qwest and CLECs to
negotiate terms outside the standards of Sections 251(b) and (c). However, the Act is
clear that all negotiated agreements for network elements or other services must be filed
with the state commissions for approval.
RESPECTFULLY SUBMITTED this 4th day of October 2004.
AT&T COMMUNICATIONS OF THE
MOUNT AIN STATES, INC.
By: ~ ~/A
Letty S. . Friesen
1875 Lawrence Street, Suite 1575
Denver, Colorado 80202
Telephone: [phone]
Facsimile: [phone]
Email: lsfriesen
(g)
attcom
41 Unbundled Access to Network Elements WC Docket No. 04-313; Review of the Section 251 Unbundling
Obligations of Incumbent Local Exchange Carriers CC Docket No. 01-338, Order and Notice of Proposed
Rulemaking, FCC 04-179 (reI. Aug. 20 2004) at en 13.
Qwest.
Spirit of Service
Exhibit A
Announcement Date:
Effective Date:
Document Number:
Notification Category:
Target Audience:
Subject:
July 20, 2004
Immediately
G NRL.07 .20.04.000460. QPP
General Notification
CLECs
Qwest Platform PlusTM Terms Available to all
Interested CLECs
By now you are aware of the qround breakinQ commercial aqreement between Qwest and MCI
concerning Qwest Platform PlusTM (QPPTM
On June 2004, Qwest and MCI announced a commercially negotiated agreement
governing the pricing and availability of wholesale services that Qwest would provide to
MC. once the D.C. Circuit Court of Appeals' decision took effect vacating the FCC'
wholesale unbundling rules. It was the first commercially negotiated agreement between an
RBOC and a major CLEC. It followed on the heels of the FCC's March 3, 2004, letter
urging telecommunications carriers to "engage in a period of good faith negotiations to arrive at
commercially acceptable arrangements for the availability of unbundled network elements.
Qwest engaged in good faith negotiations with many individual CLEC customers as well as
mediated multilateral sessions with a CLEC consortium. While Qwest and the CLEC
consortium didn t ultimately reach agreement, the customer input that was garnered from those
sessions was critical to the development of the final QPPTM offering. Individual customer
negotiations with respect to QPPTM and other TRD-impacted products continue.
On July 16, 2004, Qwest and MCI signed the definitive agreements that will govern the pricing
and availability of wholesale services from Qwest to MCI through July 31 , 2008, now that the D.
Circuit Court of Appeals' decision vacating the FCC's wholesale unbundling rules has taken effect.
Qwest is making the terms of the Qwest/MCI deal available to all interested CLECs. Qwest and
MCI have proven that business-to-business negotiations can result in significant commercial
agreements without government intervention. Qwest hopes that other CLEC customers will take
advantage of these terms.
The QPPTM commercial agreement provides wholesale pricing continuity and certainty
about the availability of services. Qwest Platform PlusTM new offering, is the functionally
equivalent replacement for UNE-P and is priced equivalent to UNE-P service through Dec. 31
2004:
During the transition period of Jan. 2005-Jan. 1 2007 , there will be incremental rate
adjustments at scheduled points.
Rates will increase an average of less than $5 (across both residential and business lines) by
the end of the transition period.
The agreement recognizes the inherent differences in residential and business service markets
and includes a split schedule for wholesale service rates in these markets.
Like UNE-, QPPTM rates are geographically sensitive.
Note: In cases of conflict between the changes implemented through this notification and any GLEC interconnection agreement (whether based on the Owest SGAT
or not), the rates, terms and conditions of such interconnection agreement shall prevail as between Owest and the GLEC party to such interconnection agreement.
The Owest Wholesal~) Web Site providE)S a comprehensive catalog of detailed information on Owest products and SEHvices including specific desc(ptions on doing
business with Owes\. AI! inrorrnation provided on the site describes current activities and process,
Prior to any modifications to existing activities or processes described on the web site, who!esale customers wi!! receive written notification announcinp the upcoming
change,
if you would like to unsubscribe to rnaiiouts please go to the "Subscribe/Unsubscribe" "Neb site and follow the unsubscribe instructions, The site is located at:
hUp :f/www, qwest ,comfwholesaiefnoticns!cn la!rnaiiiis\.h tml
OppTM services may also be purchased with Owest DSL services , Advanced Intelligent
Network (AIN) Services and Owest Voice Messaging.
Finally, OppTM includes commercially negotiated quality assurance measures designed to
assure that CLECs receive quality wholesale service.
An interconnection agreement amendment includes new rates and features for Batch Hot
Cuts the batch process of moving customer lines from a Owest switch to a CLEC switch. The
deal also includes new electronic scheduling and online status tools to make the Batch Hot Cut
process more efficient and cost effective for both parties.
The QwestiMCI agreements became effective on Friday, July 16, 2004, the day the definitive
agreements were executed. The commercial agreement covering Owest Platform PlusTM is not
subject to Section 252 requirements and therefore does not fall under the jurisdiction of any state
regulatory commission. However, Owest provided a courtesy copy of the commercial agreements
to its in-region state commissions.
Shortly, both the Interconnection Agreement Amendment and the QPPTM Commercial
Agreement will be posted to Qwest Web sites. Owest will make OppTM available to any
interested CLEC:
The Interconnection Agreement Amendment will be located here:
http://www.qwestcom/whoiesale/clecs/amendments.htmi
The OPP Commercial Agreement will be located here:
http://www. qwestcom/wholesale/clecs/commercialaq reements. html
Qwest will host a conference call that is open to all interested CLECs to acquaint the
industry with the details of the QPPTM service offering. During the call, Owest will discuss the
OPpTM service offering and answer your questions:
Conference Call Date: 07/22/04Conference Call Time: 3:30pm Mountain
Conference Bridge Information: Domestic Participants - 800-862-9098
nternational Participants - 785-424-1051
Conference I D - OW722
If you have questions or concerns in advance of this discussion , please feel free to contact:
Cliff Dinwiddie
Wholesale Business Management
Owest Services Corporation
303-896- 7846
cdinwid ~ qwestcom
Sincerely,
Sincerely,
Owest
Exhibit B
- BEFORE THE PUBUC SERVICE COMMISSION OF UTAH -
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In the Matter of the Interconnection
Agreement Between Qwest Corporation
and MCImetro Access Transmission
Services, LLC for Approval of an
Amendment for Elimination of UNE-P and
Implementation of Batch Hot Cut Process
and QPP Master Service Agreement
) .
DOCKET NO. 04-2245-
ORDER DENYING
MOTION TO DISMISS
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ISSUED: September 30.2004
By The Commission:
On July 27,2004, MCImetro Access Transmission Services, LLC (MCI) filed with
the Commission two documents B 1. An Amendment to Interconnection Agreement for Elimination
of UNE- P and Implementation of Batch Hot Cut Process and Discounts (Interconnection Agreement
Amendment), and 2. A Master Service Agreement for the Provision of Qwest Platfonn Plus Service
(QPP Service Agreement). The Interconnection Agreement Amendment essentially makes three
changes to an existing interconnection agreement between MCI and Qwest Corporation (Qwest).
They are - 1. Adding the terms and conditions for hot cut batches, 2. An agreement that Qwest will
not offer, nor will MCI order, unbundled mass market switching, unbundled enterprise switching or
unbundled shared transport as part of the unbundled network element platfonn (UNE-P) out of the
existing interconnection agreement or other agreement governed by 47 U .C. "251 and 252, and 3.
The availability of line splitting for loops provided pursuant to the existing interconnection
agreement. The QPP Service Agreement is a voluntarily negotiated agreement between MCI and
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Qwest by which Qwest will provide services (QPP services) consisting of "the Local Switching
Network Element (including the basic switching function, the port, plus the features, functions, and
capabilities of the Switch including all compatible and available vertical features, such as hunting
and anonymous call rejection, provided by the Qwest switch) and the Shared Transport Network
Element in combination, at a minimum to the extent available on UNE-P under the applicable
interconnection agreement or SGAT where MCI has opted into an SGAT as its interconnection
agreement (collectively, "ICAs ) as the same existed on June 14, 2004." The QPP Service
Agreement also provides that Qwest will combine the QPP services with loops which MCI may have
obtained through other interconnection agreements. The QPP Service Agreement further provides for
the performance targets and the recuning and nonrecuning charges for QPP services. Through its
filing, MCI requested Commission review and approval of the Interconnection Agreement
Amendment and the QPP Service Agreement.
On August 13,2004, Qwest filed a Motion to Dismiss Application for Approval of
Negotiated Commercial Agreement (Dismissal Motion). Qwest agrees that the Interconnection
Agreement Amendment is subject to filing and Commission review and approval, but argues that is
not the case for the QPP Service Agreement. Qwest argues that the QPP Service Agreement does not
need to be submitted to the Commission pursuant to 47 U.252. Qwest argues that the QPP
services are not required to be provided pursuant to 47 U.251 (b) and (c). Qwest therefore
concludes that the QPP Service Agreement is not an interconnection agreement which is subject to
the Commission s review and approval under '252. Qwest argues that the Commission has no
authority under federal or state law to review or approve the QPP Services Agreement. Multiple
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parties filed opposition to the Dismissal Motion. On August 23, 2004, MCI filed its Response to
Qwest's Motion to Dismiss. On August 27,2004, the Division of Public Utilities (Division) filed its
Response in Opposition to the Motion of Qwest to Dismiss and Application for Approval of an
Interconnection Agreement. On August 25,2004, AT&T Communications of the Mountain States,
Inc., and TCG Utah (A TT) filed A IT's Response to MCI's Agreement Filing and Qwest's Motion to
Dismiss 1 On August 31, 2004, and again on September 9, 2004, Qwest replied to the opposing
arguments of MCI, the Division and ATT. We conclude that Qwest's argument is in error. We
conclude that the QPP Service Agreement should be filed and that the Commission does have
authority to review and approve the QPP Service Agreement.
DISCUSSION
Much of the parties ' argument is based upon the application of 47 U.C. " 251
and 252 provisions and two FCC decisions? With respect to agreement submission to state
commissions, 47 U.C. '252 provides, in relevant part:
(a) Agreements Arrived At Through Negotiation. B (1) Voluntary Negotiations. -
Upon receiving a request for interconnection, services, or network elements pursuant
A TT also sought intervention, which was granted September 17, 2004.
The parties also make argument on statutory provisions beyond what is address in this
order. Our resolution made herein is not intended to be any determination based on those
arguments.
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to section 251, an incumbent local exchange carrier may negotiate and inter into a
binding agreement with the requesting telecommunications carrier or carriers without
regard to the standards set forth in subsection (b) and (c) of section 251. The
agreement shall include a detailed schedule of itemized charges for interconnection
and each service or network element included in the agreement. The agreement
including any interconnection agreement negotiated before the date of enactment of
the Telecommunications Act of 1996, shall be submitted to the State commission
under subsection (e) of this section.
( e) Approval By State Commission. - (1) Approval Required. B Any interconnection
agreement adopted by negotiation or arbitration shall be submitted for approval to the
State Commission. A State Commission to which an agreement is submitted shall
approve or reject the agreement, with written findings as to any deficiencies. (2)
Grounds for Rejection. B The State Commission may only reject B (A) an agreement
(or any portion thereof) adopted by negotiation under subsection (a) if it finds that B
(i) the agreement (or portion thereof) discriminates against a telecommunications
carrier not a party to the agreement, or (ii) the implementation of such agreement or
portion is not consistent with the public interest, convenience, and necessity; or (B)
an agreement (or portion thereof) adopted by arbitration under subsection (b) if it
finds that the agreement does not meet the requirements of section 251 , including the
regulations prescribed by the Commission pursuant to section 251, or the standards
set forth in subsection (d) of this section.
Although this language gives an unambiguous directive that an agreement "shall be
submitted to the State commission , Qwest argues that a decision of the Federal Communications
Commission (FCC) requires a different result.
In 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), WC Docket No. 02-, 17 FCC Rcd 19337,
2002 FCC Lexis 4929 (October 4 2002) (Declaratory Order) the FCC responded to a request for
guidance about the types of negotiated contractual arrangements that should be subject to the filing
requirement of '252(a)(1). Before the FCC, Qwest argued that agreements subject to the filing
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requirement are those that "include (i) a description of the service or network element being offered;
(ii) the various options available to the requesting carrier (e., loop capacities) and any binding
contractual commitments regarding the quality or perfonnance of the service or network element;
and (Hi) the rate structures and rate levels associated with each such option (e.g., recurring and non-
recurring charges, volume or term commitments).Id., at & 2. As part of Qwest' s argument, Qwest
maintained that only limited portions of an agreement (a schedule of itemized charges and associated
descriptions of the services to which the charges apply) should be filed. Qwest also argued that
agreements concerning network elements that have been removed from the national list of elements
subject to mandatory unbundling need not be filed. Id., at && 3, 5 and 8. Commenters opposed the
narrow reading of the filing statute proposed by Qwest. Some sought a filing requirement for all
types of agreements, hoping to avoid any question of what types of agreements should be filed. Id.
& 5 and fn. 26.
In reaching its resolution, the FCC first noted that it is the state commissions who will
determine what agreements are subject to the filing requirement. Id., at & 7. "Based on their statutory
role provided by Congress and their experience to date, state commissions are well positioned to
decide on a case-by-case basis whether a particular agreement is required to be filed as an
interconnection agreement" and, if so, whether it should be approved or rejected.Id.at & 10. The
FCC's conclusion on the issue presented was that "an agreement that creates an ongoing obligation
pertaining to resale number portability, dialing parity, access to rights-of-way, reciprocal
compensation, interconnection, unbundled network elements, or collocation is an interconnection
agreement that must be filed pursuant to section 252(a)(1).Id., at & 8. The QPP Service Agreement
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is subject to the filing requirement required by the statute and under the Declaratory Order
conclusion. Its terms fall within '252's rubric of "interconnection, services, or network elements," its
tenns deal with network elements and the compensation to be paid for them. QPP services are
unavoidably network elements under 47 U.153 (45)'s definition. The QPP Service Agreement
addresses ongoing obligations for matters within the list give by the FCC in the Declaratory Order
decision.
Qwest's argument before us, for a contrary conclusion, is similar to its argument
before the FCC - vis only agreements dealing with network elements which a carrier does not
voluntarily agree to provide, but is compelled to provide through the FCC's detennination under
251 (d)' s "necessary" and "impair" analysis, trigger '252 (a)( 1 )' s filing requirement. Qwest'
position is based on language contained in footnote 26 of the Declaratory Order.3 There, the FCC
states:
We therefore disagree with the parties that advocate the filing of all agreements
between an incumbent LEC and a requesting carrier. See Office of the New Mexico
Attorney General and the Iowa Office of Consumer Advocate Comments at 5.
Instead, we find that only those agreements that contain an ongoing obligation
relating to section 251(b) or (c) must be filed under 252(a)(1). Similarly, we decline
Touch America s suggestion to require Qwest to file with us, under section 211 , all
agreements to competitive LECs entered into as "settlements of disputes" and publish
Qwest argues that the FCC followed Qwest=s position in In the Matter of Qwest
Corporation Apparent Liability for Forfeiture, File No. EB-03-lli-0263, NAL Account No.
200432080022, FRM No. 0001-6056-25.
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those terms as 'generally available' terms for all competitive LECs. Touch America
Comments at 10, citing 47 U.C. '211.
We do not apply this language in as limiting a fashion as advocated by Qwest. We consider the
FCC's footnote 26 language as addressing the contentions made by the comments identified therein.
These comments had advocated that the '252(a)(l) filing requirement should be applied to every
agreement between an incumbent LEC and another carrier. It was also suggested that '252 included
settlement agreements that resolved past disputes. The FCC rejected these comments, concluding
that agreements that should be filed are not every type of agreement between carriers, but
interconnection agreements - those that deal with ongoing obligations dealing with resale, number
portability, dialing parity, access to rights-of-way, reciprocal compensation, interconnection,
unbundled network elements, or collocation. Id.at & 8.4 The language from the footnote must be
considered in conjunction with the language used in the body of the Declaratory Order and the
statutory language. The operative consideration is whether the agreement's tenus address or create an
ongoing obligation dealing with interconnection, services or network elements.
However, when an agreement deals with these matters, not on a going basis, but on an
after-the-fact, settlement of past conduct basis, the FCC concluded that it is not subject to the
, 2552(a)(1) filing requirement. Id.at & 12.
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Reading '252's filling requirement, and state commission approval or rejection, to
apply only to an agreement whose tenus address a compelled '251 matter, rather than to all
interconnection agreements dealing with such matters (whether included by voluntary negotiation or
by compulsion), completely ignores the specific language of the statute. Congress did task the FCC
with responsibility to determine what minimal access to network elements, required under '251 (c )(3),
would be compelled through '252( d)' s "necessary" and "impair" standards. But in wording '252
Congress did not restrict the need to file agreements with state commissions to only those
agreements whose terms address interconnection, services, or network element matters by
compulsory mandate related to '251 (b) or (c). Congress created a wider ambit. Congress required
filing and state commission approval or rejection of agreements where the incumbent local exchange
carrier "negotiate(s) and enter(s) into a binding agreement with a requesting telecommunications
carrier or carriers without regard to the standards set forth in subsection (b) or (c) of section 251.
...
The agreement shall be submitted to the State commission under subsection liD of this section.
47 U.C. '252(a)(1). Congress clearly anticipated agreements that would not be driven by '251(b) or
(c). It required these agreements to be filed with and reviewed by state commissions. To do
otherwise fails to give any attention to the specific language Congress used in enacting '252.
5 In the same section (part of the ellipsis in the quoted portion), Congress also required
that interconnection agreements negotiated prior to enactment of the 1996 Federal
Telecommunications Act (which necessarily could not have been negotiated with regard to or
had tenus intended to address then nonexisting' 252(b) or (c) standards) be submitted to state
commissions under ' 252(e). See, ' 252(a)(1). This is further evidence of Congress= intent that
all interconnection agreements, not just those attempting to comply with compelled provision
related to ' 251 (b) and (c), pass under state commission review.
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That Congress includes all interconnection agreements for state commission filing
and review, and not just those that address compelled interconnection terms, is not unwarranted.
Qwest's limitation, to include only agreements whose terms address network elements whose
provision is compelled, fails to recognize the differing concerns contemplate" by Congress. The
criteria by which the FCC is to base compelled provision are not coterminous with the criteria by
which a state commission is to approve or reject an agreement. Mandatory provision is minimally
based upon '251 (d)(2)' s test that access to a proprietary network element is necessary and that
lack of access to a network element impairs a carrier s ability to provide services. 47 U .
252(d)(2)(A) and (B). State commission review of an agreement is based on entirely different
criteria. A state commission can only reject a voluntarily negotiated agreement if the state
commission finds that the agreement discriminates against a telecommunications carrier not a
party to the agreement, or that implementation of the agreement is not consistent with the public
interest, convenience and necessity. 47 U.C.'252(e)(2)(A). A state commission can reject an
arbitrated agreement if it finds the agreement does not meet the requirements of '251 or '252( d). 6
47 V.C. '252(e)(2)(B). Compelled aspects are driven by concerns for the interests of the
requesting carrier. Filing and state commission review are driven by concerns for interests of
other entities and public interests. These concerns go beyond those relating to the incumbent
carrier and the interconnecting carrier whose agreement is at issue.
~at Congress directs state commission review to consider ' 251 requirements in a
separate subsection part dealing with review of arbitrated agreements, and makes no such
reference in the subsection part dealing with review of voluntarily negotiated agreements, is
further evidence of Congress= view that state review of voluntarily negotiated interconnection
agreements is not limited by , 25l(b) or (c) directive.
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10-
We address Qwest's argument based on the U.S. Court of Appeals decision found in
United States Telephone Association FCC, 359 F.3d 554 (D C, Cir. 2004) (USTA II), only to note
that Qwest's argument is based on Qwest's flawed view that '252 filing and review is limited to
agreements dealing with network elements whose provision is compelled under the "necessary" and
impair" standards of '251 (d). In UST A II the court vacated the FCC's determinations identifying
which network elements fell within the impairment analysis of '251(d) and the FCC's delegation to
state commissions to make further, limited impairment detenninations. As argued by Qwest, "Qwest
is no longer obligated to provide unbundled access to local switching or shared transport pursuant to
section 251 of the federal Act. . . . (A)n agreement relating to these elements is not required to be
filed for approval pursuant to section 252 "Qwest Corporation s Joint Reply to MCIMetro, AT&T
and the Division of Public Utilities in Support of Its Motion to Dismiss, at 3.
As discussed above, our conclusion is not based on any notion that the network
elements covered by the QPP Services Agreement are provided under '251 impairment compulsion
(whether the impairment determination is made by the FCC or a state commission pursuant to a
purported FCC delegation). Our conclusion is based upon Congress' unambiguous statutory
language that voluntarily negotiated agreements made "without regard to the standards set forth in
subsections (b) or (c) of section 251 . . . shall be submitted to the State commission under subsection
(e) of this section (252)." 47 U.C. '252(a)(1). Congress
' '
252 wording makes Qwest's argument
based on '251 compulsion standards for network elements irrelevant. Indeed Congress' language can
easily be viewed as directly contradicting the position advocated by Qwest. Section 252 filing and
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11-
review is not limited by '251 compulsory provision detenninations, it is required in spite of such
detenninati ons.
Based upon our discussion and conclusion made herein, we direct that any
interconnection agreement which creates or addresses an ongoing obligation of an incumbent local
exchange carrier for interconnection, services or network elements must be filed with us and is
subject to our review for approval or rejection pursuant to 47 D.C. '252. Wherefore, both the
Interconnection Agreement Amendment and the QPP Services Agreement, submitted by MCImetro
on July 27, 2004, are properly filed with the Commission and can be reviewed by the Commission
for approval or rejection. We therefore enter this ORDER denying Qwest's Motion to Dismiss.
DATED at Salt Lake City, Utah, this 30th day of September, 2004.
Isl Ric Campbell. Chairman
Isl Constance B. White. Commissioner
Isl Ted Boyer. Commissioner
Attest:
Isl Julie Orchard
Comnrission Secretary
GW#40491
CERTIFICATE OF SERVICE
I certify that the original and seven copies of AT&T's Comments in Docket No. QWE-04-
were sent by overnight delivery on October 4 , 2004 to:
Jean Jewell, Secretary
Idaho Public Utilities Commission
472 West Washington Street
Boise, ill 83702-5983
and a true and correct copy was sent by U. S. Mail , postage prepaid, on October 4, 2004 to:
Mary S. Hobson
Stoel Rives, LLP
101 S. Capitol Blvd., Suite 1900
Boise, ill 83702
Tom Dixon
MCI
707 17th Street, Suite 4200
Denver, CO 80202