20041006MCImetro Comments.pdf

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Dean J. Miller (ISB No. 1968)
McDEVITT & MILLER LLP
420 West Bannock Street
O. Box 2564-83701
Boise, Idaho 83702
Tel: [phone]
Fax: [phone]
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Attorneys for MCI
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
Case No. QWE-O4-
IN THE MATTER OF QWEST CORPORATION AND
MCIMETRO ACCESS TRANSMISSION SERVICES
LLC'S MASTER SERVICE AGREEMENT FILING
MCImetro ACCESS
TRANSMISSION SERVICES,
LLC's COMMENTS
INTRODUCTION
In this Proceeding the Commission seeks comment on the question of whether a Master
Service Agreement (MSA), as described in the Commission s Notice dated September 15 2004
is subject to the filing and review requirements of 47 U.C. Section 252 et. seq.
MCImetro Access Transmission Services, LLC ("MCI") appreciates the opportunity to
comment. For the reasons set forth below, the Commission should conclude the MSA is subject
to the section 252 filing and review requirements.
ARGUMENT
Federal Law requires that the Commercial Ae:reement be filed for Review and Approval.
Section 252(a) (1) of the federal Act, entitled "Voluntary Negotiations" states:
(1) Upon receiving a request for interconnection, services, or network
elements pursuant to section 251 , an incumbent local exchange carrier may
negotiate and enter into a binding agreement with the requesting
telecommunications carrier or carriers without regard to the standards set forth in
subsections (b) and (c) of section 251. The agreement, including any
interconnection agreement negotiated before the date of the Telecommunications
MCl's COMMENTS-
Act of 1996, shall be submitted to the State commission under subsection (e) of
this section.
Section 252(e) (1) and (3) provide in part:
(1) Any interconnection agreement adopted by negotiation or
arbitration shall be submitted for approval to the State commission
(3) Notwithstanding paragraph (2), but subject to section 253 of this title, nothing
in this section shall prohibit a State commission from establishing or enforcing
other requirements of State law in its review of an agreement, including requiring
compliance with intrastate telecommunications service quality standards or
requirements.
This section was interpreted by the Federal Communications Commission ("FCC") in
October 2002. The FCC stated:
7. we believe that the state commissions should be responsible for applying,
in the first instance, the statutory interpretation we set forth today to the terms and
conditions of specific agreements. Indeed, we believe this is consistent with the
structure of section 252, which vests in the states the authority to conduct fact-
intensive determinations relating to interconnection agreements
8. . we find 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).
10. 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.
Footnote 26 referenced in Paragraph 8 states: "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).
However, in March 2004, in its Notice of Apparent Liability for Forfeiture issued to Qwest, the
Commission states in Paragraph 21: "We have historically given broad construction to Section
252(a) (1)." The FCC goes on to state:
Memorandum Opinion and Order FCC 02-276 issued in WC Docket 02-, entitled Qwest Communications
International, Inc. Petition for Declaratory Ruling on the Scope of the Duty to File and Obtain Prior Approval
Negotiated Contractual Arrangements under Section 252(a)(l), Paragraphs 7, 8 and 10.
MCl's COMMENTS-
any 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).
In this latter instance, the FCC does not limit its direction to only those agreements that contain
an ongoing obligation relating to section 251(b) or (c) must be filed under 252(a)(1).
The FCC recently issued FCC Order 04-179 in the WC Docket No. 04-3134 (Released
August 20, 2004). This order makes it clear that the issue of whether to file commercial
agreements that do not provide for section 251 network elements is not settled by the FCC. That
order states in pertinent part at paragraph 13:
Additionally, we incorporate three petitions regarding incumbent LEC obligations
to file commercial agreements, under section 252 of the Act, governing access to
network elements for which there is no section 251 ( c )(3) unbundling obligation.
To that end, should we properly treat commercially negotiated agreements for
access to network elements that are not required to be unbundled pursuant to
section 251 (c )(3) under section 252, section 211 , or other provisions of law?
As is clear from that passage, the FCC's order does not affect this Commission
jurisdiction over the filing of the Commercial Agreement for state review and approval, since the
issue of filing obligations for commercial agreements is one of the issues that the FCC'
explicitly seeks comment upon in its ongoing rulemaking. Indeed, the fact that the FCC has not
squarely determined this issue is reinforced by the concurring statement of FCC Commissioner
Kathleen Abernathy, who lamented the fact the FCC did not clarify the status of commercial
agreements:
Yet I am disappointed that the Commission did not clarify in this Order the legal
status of commercial agreements that pertain to services or facilities for which no
section 251 mandate exists. Because both incumbent LECs and competitors have
cited lingering uncertainty on this issue as a stumbling block to further
In the Matter ofQwest Corporation Apparent Liability for Forfeiture, File No. EB-03-IH- 0263 , NAL Account No.
200432080022, FRM No. 0001-6056-, Paragraph 22.3 SBC Communications, Inc., Emergency Petition for Declaratory Ruling, Preemption, and Standstill, WC Docket
No. 04-172 (filed May 3 2004); BellSouth, Emergency Petition for Declaratory Ruling (filed May 27 2004);
BellSouth, Petition for Forbearance Under 47 U.C. ~ 160(c) from Enforcement of Section 252 with Respect to
Non-251 Agreements (filed May 27 2004).
MCI's COMMENTS-
agreements, we should have removed that obstacle now. I only hope that the
Commission does so in the near future.
Because this agreement creates an ongoing obligation pertaining to Qwest's provision of
unbundled network elements (albeit pursuant to Section 271 , not Section 251), the parties have
an obligation to file the Commercial Agreement with the state so that the state can determine
whether the Commercial Agreement discriminates against a telecolnmunications carrier not a
party to the Commercial Agreement and whether approval of the Commercial Agreement is not
consistent with the public interest, convenience and necessity as described in Section
252( e )(2)(A).
Section 252( e) requires that a voluntarily negotiated agreement be filed with state
commissions for review and approval to ensure that such voluntarily negotiated agreements do
not discriminate against other carriers not parties to the agreement and that the agreement is not
contrary to the public interest.
The FCC has clearly left the first determination of what is an interconnection agreement
to the states.
The FCC emphasized the states' roles in a footnote to paragraph 7 stating:
As an example of the substantial implementation role given to the states
throughout the arbitration provisions of section 252, Congress committed to the
states the fact-intensive determinations that are necessary to implement contested
interconnection agreements. See, e.
g.,
47 U.C. 9 252(e)(5) (directing the
Commission to preempt a state commission s jurisdiction only if that state
commission fails to act to carry out its responsibility under section 252).
Finally, in its Declaratory Order, the FCC did not interpret Section 252( e) directly, and
therefore, did not address the filing of voluntarily negotiated agreelnents under the section, nor
provide as to the requirements of Section 252( e). Qwest's petition for a declaratory ruling only
4 Memorandum Opinion and Order FCC 02-276 issued in WC Docket 02-, entitled 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)(J), Paragraph 7.
MCl's COMMENTS-4
sought a declaratory ruling on the scope of the mandatory filing requirement set forth in section
of the Communications Act of 1934, as amended.Thus, MCI believes the
Commercial Agreement must be filed with the state under federal law.
The Utah and Montana Commissions Have Correctly Decided The Question.
As the Commission is aware, the regulatory status of Master Service Agreements is an
issue that is pending before many state commissions in the Qwest service region. To the
knowledge of MCI, the first Commission that reached a final determination of the question is the
Utah Commission. On September 30, 2004 the Utah Commission issued its Order Denying
Motion to Dismiss, a copy of which is attached hereto as Exhibit A. In Utah, MCI filed a MSA
(there refereed to as a QPP Service Agreement) that was substantially identical to the Idaho
MSA. Qwest moved to dismiss the MCI filing, arguing that review and approval was not
necessary under sections 251 and 252.
After a detailed analysis of the statute and relevant FCC decisions the Utah Commission
concluded:
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 U.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. (Order Denying Motion to Dismiss, pg 11).
Further, on October 5 , 2004 the Montana Commission reached a similar result when it
entered an Order in Montana PSC Docket No. 2004.119 denying Qwest's Motion to
Dismiss the filing in Montana of a substantially identical MSA.
Id. at footnote 23.
Id. at ~ 1.
MCl's COMMENTS-
The Idaho Commission should reach the same conclusion, both because the analysis of
the Utah and Montana Commissions is correct and in the interest of inter-jurisdictional
consistency.
C. The Staffs in Arizona, New Mexico and Oree:on Have Correctly Analyzed The Issue.
MCImetro filed the same Commercial Agreement in all of the 14 states in Qwest
Corporation s ("Qwest") region. Attached hereto are Responses filed by the staff of state
commissions in Arizona, New Mexico and Oregon addressing the same issue presented to this
Commission that were filed in those states.
MCI supports the legal arguments contained in each of the Arizona, New Mexico and
Oregon staff responses to Qwest motions to dismiss filed in those states. Those staff responses
provide further legal argument and support for MCI's position on this issue. The Arizona, New
Mexico and Oregon staff responses are attached as Exhibits B, C and D.
CONCLUSION
For the reasons set forth above, the Commission should conclude that the Master Service
Agreement is subject to the requirements of 47 U.C. 252.
Respectfully Submitted this Lt Day of October, 2004.
MCImetro ACCESS TRANSMISSION SERVICES, LLC
Dean J. Miller
Attorneys for MClmetro
MCl's COMMENTS-
CERTIFICATE OF SERVICE
I certify that the original and seven copies of the foregoing document were delivered on
October , 2004 to:
Jean Jewell, Secretary
Idaho Public Utilities Commission
472 West Washington Street
Boise, Idaho 83702
and true and correct copies were forwarded on October 2004 via the methodes)
indicated, to the following:
Mary S. Hobson
STOEL RIVES, LLP
10 1 S. Capitol Blvd., Suite 1900
Boise, Idaho 83702
Hand Delivered
Federal Express
S. Mail/
Telecopy
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MCI's COMMENTS- 7
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Exhib it
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m.. -
- BEFORE THE PUBLIC SERVICE COMMISSION OF UTAH -
- - - - - - - -- -- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
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-
0 RD ER D ENYIN G
MOTION TO DISMISS
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
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
ofUNE-P and Implementation of Batch Hot Cut Process and Discounts (Interconnection Agreement
Amendment), and 2. A Master Service Agreement for the Provision of Qwest Platform 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 platform (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
Exhibi t A
DOCKET NO. 04-2245-
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 SGA T where MCI has opted into an SGA T 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 recurring and nonrecurring 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.C.'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
DOCKET NO. 04-2245-
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 TT' s Response to MCrs Agreement Filing and Qwest's Motion to
Dismiss 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.
DOCKET NO. 04-2245-
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
(i) the agreement (or portion thereof) discrirninates 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)(l), 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
DOCKET NO. 04-2245-
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 performance of the service or network element;
and (iii) the rate structures and rate levels associated with each such option (e., recurring and non-
recurring charges, volume or term commitments).ld.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.ld.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.ld.
& 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 requirementld.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.ld.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)(l ).ld.at & 8. The QPP Service Agreement
DOCKET NO. 04-2245-
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
terms deal with network elements and the compensation to be paid for them. QPP services are
unavoidably network elements under 47 U.C.'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 determination under
251 (d)' s "necessary" and "impair" analysis, trigger '252 (a)( 1)' s filing requirement. Qwest's
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) ore 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-IH-0263 , NAL Account No.
200432080022, FRM No. 0001-6056-25.
DOCKET NO. 04-2245-
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)(1) 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. 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 terms 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. at & 12.
DOCKET NO. 04-2245-
Reading '252's filling requirement, and state commission approval or rejection, to
apply only to an agreement whose terms 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 J and enter ( s J into a binding agreement with a requesting telecommunications
carrier or carriers without regard to the standards set forth in subsection of section 251.
...
The agreement shall be submitted to the State commission under subsection 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 terms intended to address then nonexisting ' 252(b) or (c) standards) be submitted to state
commissions under ' 252(e). See '252(a)(I). 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.
DOCKET NO. 04-2245-
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 contemplated 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 D.
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.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 U.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.
That 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 '251 (b) or (c) directive.
DOCKET NO. 04-2245 -
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 , 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 determinations. 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 In 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
DOCKET NO. 04-2245-
11-
review is not limited by '251 compulsory provision determinations, it is required in spite of such
determinations.
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 U.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
Commission Secretary
GW#40491
Exhibit
BEFORE THE ARIZONA CORPORATION CO1\1NllSSION
COMMISSIONERS
Marc Spitzer, Chairman
William A. Mundell
Jeff Hatch-Miller
Mike Gleason
Kristin K. Mayes
IN THE MATTER OF THE APPLICATION OF
MCImetro ACCESS TRANSMISSION SERVICES
7 LLC, FOR APPROVAL OF AN AMENDMENT
FOR ELIMINATION OF UNE-P AND
IMPLEl\1ENT ATION OF BATCH HOT CUT
9 PROCESS AND QPP MASTER SERVICES
Docket No. T -01 051B-04-0540
T -03574A-04-0540
STAFF'S RESPONSE TO QWEST'
MOTION TO DISMISS APPLICATION FOR REVIEW
OF NEGOTIATED COMMERCIAL AGREEMENT
INTRODUCTION
On July 16, 2004, Qwest Corporation ("Qwest") and MCImetro Access Transmission
Services, L.L. C. ("MCI") entered into two separate agreements. The first agreement was labeled an
Amendment to their Interconnection Agreement. The second agreement was labeled the QPP Master
Service Agreement. The first agreement both MCI and Qwest filed for Commission approval under
47 U.C. Section 252(e). The second agreement Qwest filed with the Commission for informational
purposes only. However, MCI subsequently filed the second agreement with the Commission for
approval under 47 U.C. Section 252(e). On August 6, 2004, Qwest filed a Motion to Dismiss
MCrs Application for Commission review and approval of this Agreement. For the following
reasons, Qwest's Motion to Dismiss should be denied.
ll.DISCUSSIONA. State Commission Have Broad Authority Under Section 252 Over the Review and
Approval of Interconnection Agreements
Under Section 252 of the Federal Act, State commissions are given broad authority to review
and approve "interconnection agreements" between carriers.The Act encourages carriers to
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Exhibi t B
undertake voluntary negotiations and to enter into voluntary binding agreements without regard to the
standards set forth in subsections (b) and (c) of Section 251 of the Act. If disputes arise, the State
commission resolves them through an arbitration which is binding on both parties. In addition, the
State commissions are the designated repository for all such agreements, whether arrived at through
arbitration or voluntary negotiation.
The FCC has addressed the types of agreements which fall within the scope of Section 252
several times, the most recent being in response to a Petition for Declaratory Ruling filed by Qwest.
In its Declaratory Ruling in response to Qwest's Petition, the FCC stated that if the agreement
pertained to an ongoing obligation pertaining to resale, number portability, dialing parity, access to
10 rights-of-way, reciprocal compensation, interconnection, unbundled network elements, or collocation
11 it was an interconnection agreement over which the State commission has jurisdiction.
The FCC also stated that the State commissions should be responsible for applying, in the first
13 instance, the statutory interpretation to the terms and conditions of specific agreements. The FCC
14 went on to state that ... we believe this is consistent with the structure of section 252, which vests in
15 the states the authority to conduct fact-intensive determinations relating to interconnection
16 agreements.
The importance of the Section 252 review and filing requirements was underscored by the
18 FCC in the following passage from their Local Competition First Report and Order.
State commissions should have the opportunity to review all agreements
including those that were negotiated before the new law was enacted, to ensure
that such agreements do not discriminate... and are not contrary to the public
interest. ..Requiring all contracts to be filed also limits an incumbent LEC'
ability to discriminate among carriers, for at least two reasons. First, requiring
public filing of agreements enables carriers to have information about rates
terms, and conditions that an incumbent LEC makes available to others.
Second, any interconnection, service or network element provided under an
agreement approved by the state commission under section 252 must be made
available to any other requesting telecommunications carrier upon the same
terms and conditions in accordance with section 252(i)... Conversely,
excluding certain agreements from public disclosure could have
anticompetitive consequences.
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Section 252(e) Requires State Commission Review and Approval of "Any
Interconnection Agreement
Section 252(e)(I) requires that "any" agreement for interconnection be filed with and
reviewed by the State commission. Section 252(e)(I) provides:
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.(Emphasis added).
Qwest relies upon a recent FCC Declaratory Ruling and Section 252(a)(1) of the Act to argue
that the Arizona Commission has no authority to review and approve its QPP Master Service
Agreement with MCI, despite the fact that the Agreement governs the provision of unbundled
network elements, interconnection and access by Qwest to MC!. With regard to Section 252(a)(I),
Qwest argues that the language of that section limits the Commission s authority to the provision of
network elements, interconnection or services made under Section 251 of the Act.That provision of
the Act states in relevant part: "Upon receiving a request for interconnection, services, or network
elements pursuant to section 251, an incumbent local exchange carrier may negotiate and enter into
a binding agreement with the requesting telecommunications carrier or carriers without regard to the
standards set forth in subsections (b) and (c) of section 251.
However, this language addresses only voluntary requests for interconnection, services or
network elements and is not meant to limit the scope of the review authority of state commissions
under the Act. The provision which governs the review authority of state commissions is actually
Section 252( e) which is cited above. As already discussed, under this provision the Commission is
given review and approval authority over any interconnection agreement.There is no limiting
language as Qwest suggests that only interconnection agreements addressing network elements
interconnection or access under Section 251 must be filed, reviewed and approved by the
Commission.Had Congress intended to limit the scope of the filing obligation or the State
commission s review and approval authority in this fashion, it is presumed that Congress would
merely have added the same language to Section 252(e) which it did not. The fact that Congress did
not underscores that the Commission s review authority under Section 252 is very broad and extends
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to any agreement which addresses an ongoIng obligation relating to interconnection, network
elements or access.
Qwest also relies upon the language of Section 251 (a)( 1) as the basis for its second argument
that "the entire premise of the duty to file an agreement with a state commission under Section 252 is
based on the fact that the service or element provided is required by Section 251 (b) or ( c)." Qwest
also relies upon a statement in a recent FCC Declaratory Ruling that only agreements "that contain on
ongoing obligation relating to section 251(b) or (c) must be filed under section 252(a)(I)." However
this ignores the fact that Section 251(a)(I) itself expressly permits parties to negotiate and enter into a
binding interconnection agreement without regard to the standards set forth in Section 251 of the
10 Act. Still, these interconnection agreements are subject to the state filing and review process.
Network Elements Which Qwest Must Continue to Make Available Under
Section 271 are Interconnection and Access Obligations
At issue as a result of Qwest's Motion , is whether the Commission has jurisdiction under
14 Section 252 to review and approve the "Qwest Master Service Agreement" which Qwest calls a
15 "commercial agreement " in which Qwest has agreed to provide Qwest Platform Plus services to
16 MCI. Qwest concedes on page 1 of its Motion that Qwest is required to continue to make these
17 services available under Section 271 of the Federal Act and that the elements consist primarily of the
18 local switching and shared transport network elements in combination with other services.
The services that the QPP Master Services Agreement covers are several network elements
20 that have been affected by the D.C. Circuit's vacatur in USTA II. Thus, even though Qwest may
21 longer have to make an element available under Section 252( d)(3), Qwest may still have to make that
22 element available under Section 271 as part of its obligations under the Competitive Checklist. The
23 provisions of Section 271 at issue are contained at 47U.C. Section 271(c)(2)(B) and provide in
24 relevant part that access or interconnection provided or generally offered by a Bell operating
25 company to other telecommunications carriers meets the requirements of the 271 Competitive
26 Checklist if it includes:
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(iv) Local loop transmission . from the central office to the customer
premises, unbundled from local switching or other services.(v) Local transport from the trunk side of a wireline local exchange carrier
switch unbundled from switching or other services.
(vi) Local switching unbundled from transport, local loop transmission, or
other services.
These provisions require Qwest to continue to provide certain network elements, irrespective of any
findings of impairment under Section 251 (d)(2).
There can be little doubt that the obligations contained in Section 271 of the Federal Act are
interconnection" and "access obligations which are properly included in an interconnection
agreement under Section 252. In fact this is supported by the plain language of Section 271. The title
of the 271 section in which these specific unbundling obligations are contained is entitled "SPECIFIC
INTERCONNECTION REQUIREMENTS"
Moreover, under sub-part (A) of Section 271(c)(2), the BOC is deemed to meet the
requirements of that section if it is providing such access or interconnection in a Statement of
Generally Available Terms and Conditions ("SGAT") or an Interconnection Agreement. Under
Section 252, the State commission is given authority to review and approve both the SGAT and all
interconnection agreements entered into between carriers operating within the State s jurisdiction.
No separate review and approval process for interconnection agreements or SGA T provisions
containing 271 related provisions was established in Section 271 , and therefore, it must be presumed
that Congress intended this review to take place in the context of the regular Section 252 review
process by State commissions.
There is no Express Federal Filing Jurisdiction Under the Federal Act.
Qwest's arguments to the contrary notwithstanding, there is no express federal filing
As just indicated there was nojurisdiction under the Federal Act. See Qwest Motion at p.
separate review and approval process established in Section 271 for interconnection agreements or
SGA Ts containing 271 related provisions, therefore, it must be presumed that this review is to take
place in the Section 252 review process by State commissions.
Qwest also argues that there "is an independent investiture of federal jurisdiction under the
1996 Act Qwest goes on to argue that "(tJhe offering of the switching element... is subject to
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federal jurisdiction.Id , that the "filing and review (if any) of contracts entered into pursuant to
Section 271 (c)(2)(B) of the 1996 Act is a federal matter which has not been delegated to the states.
Id. What Qwest ignores is that the States' authority pursuant to section 252 extends to both interstate
and intrastate matters. Qwest makes a similarly flawed argument that "the federal nature of the
service under the Federal Act automatically brings them into the 'zone of federal jurisdiction.' Qwest
Motion at p. 8.
In the Local Competition First Report and Order the FCC discussed its role with that of the
states over local competition matters:
We conclude that, in enacting sections 251 252, and 253 , Congress created a
regulatory system that differs significantly from the dual regulatory system it
established in the 1934 Act. (cite omitted). That Act generally gave
jurisdiction over interstate matters to the FCC and over intrastate matters to
the states. The 1996 Act alters this framework, and expands the applicability
of both national rules to historically intrastate issues, and state rules to
historically interstate issues. Indeed many provisions of the 1996 Act are
designed to open telecommunications markets to all potential service
providers, without distinction between interstate and intrastate services.
For the reasons set forth below, we hold that section 251 authorizes the FCC
to establish regulations regarding both interstate and intrastate aspects of
interconnection, services and access to unbundled elements. We also hold
that the regulations the Commission establishes pursuant to section 251 are
binding upon states and carriers and section 2(b) does not limit the
Commission s authority to establish regulations governing intrastate matters
pursuant to section 251. Similarly, we find that the states' authority
pursuant to section 252 also extends to both interstate and intrastate
matters. Although we recognize that these sections do not contain an explicit
grant of intrastate authority to the Commission or of interstate authority to the
states, we nonetheless find that this interpretation is the only reasonable way
to reconcile the various provisions of sections 251 and 252, and the statute as
a whole. (Emphasis added).
Finally, Qwest is just plain wrong when it argues that State filing and review requirements are
not permissible because they are inconsistent with this preemptive federal policy. Qwest Motion at p.
8. Staff is not aware of a federal policy favoring market agreements for elements offered under
Section 271 , and that this is presumptively preemptive of inconsistent state regulations. See Qwest
Motion at p. 8. In fact the FCC has gone to great lengths not to preempt state jurisdiction except
where warranted based upon case by case determinations.
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In fact in its recent Declaratory Ruling, the FCC stated:
Based on their statutory role provided by Congress and their experience to
date, state commissions are well positioned to decide on a case-b6-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. Should
competition-affecting inconsistencies in state decisions arise, those could be
brought to our attention through, for example, petitions for declaratory ruling.
The statute expressly contemplates that the section 252 filing process will
occur with the states, and we are reluctant to interfere with their processes in
this area. Therefore, we decline to establish an exhaustive, all-encompassing
interconnection agreement' standard. The guidance we articulate today flows
directly from the statute and services to define the basic class of agreements
that should be filed. We encourage state commissions to take action to
provide further clarity to incumbent LECs and requesting carriers concerning
which agreements should be filed for their approval. At the same time
nothing in this declaratory ruling precludes state enforcement action relating
to these issues.
Consistent with our view that the states should determine in the first instance
which sorts of agreements fall within the scope of the statutory standard, we
decline to address all the possible hypothetical situations presented in the
record before us.
14 Declaratory Ruling at paras. 10 and 11.
Accordingly, it hardly appears that the FCC has preempted the States with respect to the
determinations regarding the Section 252 filing obligation, as Qwest argues.
The Federal Act Does Not Carve Out Any Exception to the Section 252(e)
Filing Requirement for What Qwest Calls a "Commercially Negotiated"
Agreement.
Once again, Staff is not aware, nor has Qwest identified, any provision in the Federal Act
21 which defines "commercially negotiated" agreements and carves them out of the filing requirement
22 of Section 252(e). This is merely a fiction created by Qwest and the RBOCs to escape their state
23 filing obligations under the Federal Act.
Indeed, in its recent Declaratory Ruling involving 252(e) filing obligations, the FCC expressly
25 identified only a few exceptions to the Section 252( e) filing obligation. Those included settlement
26 agreements, order and contract forms completed by carriers to obtain service pursuant to terms and
27 conditions set forth in an interconnection agreement and agreements with bankrupt competitors that
28 are entered into at the direction of a bankruptcy court or trustee and do not otherwise change the
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terms and conditions of the underlying interconnection agreement. See Declaratory Ruling at paras.
2 12, 13 and 14.
The Commission should reject Qwest's fictitious carve-out for "commercially negotiated"
agreements and Qwest s attempt to once again shoot a cannon ball through the Federal Act s filing
requirements.
The FCC Order Approving Qwest's 271 Application for Arizona, States that The
FCC and Arizona Commission are to Work together to Ensure Enforcement of
Qwest's 271 Obligations.
On December 3, 2004, the FCC granted Qwest's Application for Authorization to Provide In-
9 Region, InterLAT A Services in Arizona. As part of its Memorandum Opinion and Order, the FCC
10 specifically discussed the relationship of the FCC and the Arizona Commission in the post-271
11 approval enforcement process. At para. 59, the FCC stated:
Working in concert with the Arizona Commission, we intend to monitor
closely Qwest's post-approval compliance for Arizona to ensure that Qwest
does not "cease to meet any of the conditions required for (section 271)
approval. "
Qwest is required to meet the Competitive Checklist requirements through provisions in its
16 SGA and interconnection agreements.This hardly appears to be a situation where the FCC
17 intended to preempt State commission involvement in the post-271 approval enforcement process, as
18 argued by Qwest.
19 ill.CONCLUSION
The Commission should reject Qwest's Motion to Dismiss MCrs Application for Review and
21 Commission Approval of the Master Services Agreement entered into between Qwest and MC!.
Respectfully submitted this 10th day of September, 2004.
ARIZONA CORPORATION COMMISSION
Maureen Scott
Attorney, Legal Division
1200 West Washington
Phoenix, AZ 85007
Telephone [phone]
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Original and 13 copies of the foregoing
filed this 10
th day of September 2004
With:
Docket Control
Arizona Corporation Commission
1200 West Washington
5 Phoenix, AZ 85007
Copy of the foregoing mailed this 10th
day of September 2004 to:
Thomas H. Campbell
Michael T. Hallam
Lewis and Roca, LLP
10 40 North Central Avenue
Phoenix, AZ 85004
11 Attorneys for MClmetro
12 Thomas F. Dixon
707 17th Street
, Suite 4200
13 Denver, CO 80202
14 Attorneys for MClmetro
15 Timothy Berg
Theresa Dwyer
16 3003 N. Central, Suite 2600
17 Phoenix
, AZ 85012
18 Norman G. Curtright
Qwest Corporation19 4041 North Central, Suite 1100
Phoenix, AZ 85012
21 Todd Lundy
Qwest Corporation
22 1801 California Street, Suite 4900
Denver, CO 80202
Richard Wolters
24 AT
25 1875 Lawrence Street, 15th Floor
Denver, CO 80202
C:\Documents and Settings\Steph\Local Setting.'l\Temporary Internet Files\OLK12\O4-0540 ~tTRes to Qwest Mtn to Dismiss Application for Revidoc
Joan S. Burke
Osborn Maledon, P .
.... 2929 N. Central, Suite 2100
P. O. Box 36379
Phoenix, AZ 85067-6379
Christopher Kempley
Chief Counsel, Legal Division
Arizona Corporation Commission
1200 West Washington
7 Phoenix, AZ 85007
Ernest Johnson
Director, Utilities Division
Arizona Corporation Commission
10 1200 West Washington
Phoenix, AZ 85007
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:.' .
Exhibit
BEFORE THE l\TEW MEXICO PUBLIC REGULATION CO1\1MISSION
IN THE MA TIER 0 F THE
~ND~ffiNT TO THE
INTERCONNECTION AGREEMENT )
BETWEEN MCI AND QWEST, DATED)
JULY 16,2004 AND TI-IE MASTER
SERVICES AGREEMENT BETWEEN
MCI AND QVVEST, DATED JULY 162004
r-'c::='
.:=-
Case No. 04-00245- TIT
STAFF'S REPONSE TO Q'VEST'S l\10TION TO DISMISS APPLICATION FOR
REVIEW OF NEGOTIATED COMMERCIAL AGREEMENT
Telecommunications Bureau Staff ("Staff') of the New Mexico Public Regulation
Commission, by Staff Counsel, pursuant to 17.1.2.12.C m.1AC, responds in opposition
to Qwest's ("Commission ) Motion to Dismiss Application for Review of Negotiated
Commercial Agreement ("Motion ) filed herein on August 27, 2004. For the reasons set
forth below, Qwest has not met it burden of establishing that the Master Service
Agreement ("MSA") should be dismissed from this proceeding because Qwest has not
established, as required by Commission Rule 17.1.2.15.B NIvIAC, lack of Commission
jurisdiction, failure to meet burden of proof, failure to comply with the rules of the
Commission or other good cause; and, therefore, Qwest's Motion should be denied.
grounds for this response, Staff further argues and responds as follows:
Qwest's Motion is based on the incoITect premises, unsupported by applicable
law, that (1) the duty to file an agreement with a state commission under section 252 is
based on the fact that the service or element provided is required by section 251(b) or (c)
(Motion at p. 5); and (2) that this Commission has no authority to determine what
Exhibi t C
-'-; .\.. ' ~
Or:=\:
;;.
' G ; '
:.--" - -=----
c' -
~;0-L .
..:..:-. .
cf'\cI\
agreements qualify as interconnection agreements subject to Section 252 and
17.11.18.17.F and 17.11.18.17.G NMAC filing requirements (Motion at pp. 7-10) in
order to carry out its statutory duty of detennining whether negotiated interconneGtion
agreements are discriminatory and consistent with the public interest.47 U'C. 9
252(e) (requiring the filing of voluntarily negotiated interconnection agreement with state
commissions for review and approval to determine non discrimination and consistency
with the public interest); NMSA 1978 9 63-9A-2 (providing that the legislative intent of
the New Mexico Telecommunications Act is to encourage competition); NMSA 1978 9
63-9A-(providing that he Commission shall promulgate rules that ensure the
accessibility ofinterconnectioti by CLECs); 17.11.18 NMAC, IntercoIlllection Facilities
and Unbundled Network Elements; and NMSA 1978 9 63-7.1 (providing the
Commission s broad powers to detemrine any matters of public interest and convenience
and necessity with respect to matters subject to its regulatory authority, including rate
setting for transmission companies including telephone companies).
Qwest's Motion additionally is based on the incorrect prermse that the
interconnection agreement ("ICA") amendment and resulting amended lCA and the
MSA, that are the subject matter of this docket, are not interdependent agreements that as
a practical matter cannot function without each other for the provisioning of service
through network elements that Qwest is required to provide at a minimum pursuant to
Section 271. 47 U.C. 9 271(c)(2)(B) (setting forth the 14 point checklist requirements
for Qwest's section 271 authority to provide InterLATA 10ng distance telephone service).
For example, as pointed out by AT&T in its response, both agreements have clauses that
the other can be terminated by either party if a material provision. of one agreement
Staff's Response to Qwest's Motion to Dismiss
Utility Case No. 04-00245-UT
rejected or modified by the FCC, a state commission OT any other governmental agency.
(AT&T Response pp. 2-Further, the MSA itself, at Section 1.1. of Exhibit a, clearly
states that 'Qwest's Platform services will be purchases in combination with loops
purchases out of the parties proposed amended lCA.
Moreover, Qwest's approach to Section 252 filing requirements would result in an
absurd result as these interdependent agreements regarding the provisioning of services
through the purchasing of nehvork elements and collocation would be regulated pursuant
to two different agreement subject to two different sets of rules- one set of rules that
would provide that this Commission has review authority for a determination of
discriminatory impact and consistency with the public interest and one set of rules that
would provide that this Commission does not have such authority. Such a piecemeal
review process for this Commission is inconsistent with applicable law, is contrary to
solU1d regulatory policy and the public interest. Qwest's Motion therefore should be
denied.
Staff addressed in detail Qwest's 3 premises and related legal arguments cited
above in the Staff s Legal Memorandum Filed in Support of Stafff's Response to
Qwest's and Covad's Responses to Order to Show Cause and Recommendation to
Establish a Streamlined Interconnection Agreement Filing and Review Process
Comments ("Staffs Brief') filed in Utility Case No. 04-00209-UT on August 19, 2004 as
Exhibit A to Staffs Response filed therein. To promote administrative efficiency and
economy, Staff respectfully requests that the Hearing Examiner take administrative
notice in this proceeding of Staff s Brief filed in Utility Case No. 04-00209-UT as Staff
will not repeat these arguments , in detail herein.Moreover many of these legal
StafPs Response to Qwest's Motion to Dismiss
Utility Case No. 04-00245-UT
arguments are repeated in AT&T's Objections to Qwest's Motion to Dismiss and in
MCImetro s Response to Qwest's Motion to Dismiss filed herein and Staff generally
supports these filings to the extent that AT&T and MCI believe that the MSA and the
amendment to the amendment to the existing interconnection agreement need to be filed
with the Commission for review and approval pursuant to Section 252(e)(1) of the Act.
Qwest's Response, however, raises a presumptive preemption argument that it did
not address in its comments filed in Utility Case No. 04-00209-UT. TIlls argument, as
made herein, is made without any analysis of applicable state law. Further it is made
without any analysis of the specific federal law that provides that state commissions are
the ultimate arbitrator of what is an interconnection agreement required to be filed
pursuant to Section 252. Moreover, Qwest's argument is made without specific analysis
of federal law that provides that agreements that create ongoing obligations for network
elements are interconnection agreements and without specific analysis of the Federal
Communications Act itself that expressly provides that voluntarily negotiated agreements
are required to be filed, reviewed and approved pursuant to Section 252(e) irrespective
whether that were negotiated with regard to Section 251(b) and (c). Staff therefore
believes that Qwest's presumptive preemption is without merit as a basis for dismissing
the MSA agreement from this proceeding because Qwest has not met it burden of
establishing that the Commission has been preempted.
Qwest, MCI and AT&T do not appear to dispute that Qwest, in light oftheTRO
and subsequent D.C. Circuit Court action/ is no longer required to provide MCI or any
other requesting carrier unbundled access to the local switching network element or the
1 In the Matter of ReView of the Section 251Uilbundling Oblig:itions of Incumbent Local Exchange'
Carriers, CC Docket 01-338, released August 21,2003 (TRO). 2 United States Telecom Association v. FCC, 359 F. 3d 544 (D.C. Cir. 2004)
Stairs Response to Qwest's Motion to Dismiss
Utility Case No. 04-00245-UT
shared transport network element associated with the purchase of the local switching
network element pursuant to Section 251. An agree, however, that Qwest is still required
to do so pursuant to Section 271.
3 What this means is three things. First, if access to an
unbundled network element ("UNE") is not required pursuant to section 251, but still is
required pursuant to section 271 , the TELRIC pricing standards contained in Section 251
do not apply to that UNE that Qwest will continue to provide under market based rates
filed but not set by the FCC because the FCC does establish rates in evidentiary rate
making proceedings Second, according to Qwest, if the Commission has no authority
over an agreement relating to that UNE, the Commission has no authority to require the
filing reviey\7 and approval of a voluntarily negotiated agreements relating to that UNE,
no authority to arbitrate a dispute regarding that UNE, no authority to set pricing for that
UNE and presumably no authority to resolve any inter-carrier disputes regarding the
provisioning of the UNE. Lastly this means that according to Qwest,. two separate ~ets
of rules apply to the same lJNEs- one set of rules over which this Commission has
authority and one set of rules over which this Commission does not have authority.
Qwest's no authority argument is made irrespective of its Section 271 requirements to
continue to provide access to these UNEs, without an analysis of relevant state law or
applicable federal law that repeatedly preserves state commission authority and
recogrozes state commission authority to be the ultimate arbitrator of what is
interconnection agreement required to be filed under Section 252, and iITespective of the
interdependent nature of its lCA and commercial agreement at issue in this docket.
3 See for example, Qwest's Motion at pp. 7-, and footnote 23, citing the TRO for the proposition that
many element removed from Section 251 unbundling requirements must stil1 be provided pursuant to
Section 271.
Staff's Response to Qwest's Motion to Dismiss
Utility Case No. 04-OO245-UT
Qwest, MCI and AT&T do not dispute that the subject matter ofllie Qwest MSA
Qwest Platform Plus or "QPP", consists of the 10cal switching network element and the
shared transport network element.. QPP is defined in Section 1.1 of Service Exhibit 1 to
the MSA as consisting of the local switching element and the shared transport network
element. Neither Qwest, MCI nor AT&T dispute that these two network elements, when
combined with the purchase of the local loop network element off of a Commission
approved interconnection agreement, constitutes the functional equivalent what is lmown
as UNE-P. (The purchase of col1ocationoff of the parties' interconnection agreement is
also required for the actual provisioning of this service.) There also appears to be no
dispute that that the lCA amendment at issue in this docket effectively eliminates the
purchase of UNE-P from the parties interconnection agreements on file with the
Commission (Section 4 of the Interconnection Agreement Amendment) by removing
rates, tenns and conditions for the purchase of the of the local switching network element
and the shared transport network element to the MSA. Therefore, by purchasing QPP off
of the MSA and the localloop network element and collocation off of the interconnection
agreement between Qwest and MCr as proposed to be amended in this docket, Qwest for
all practical purposes will continue to provision MCI with UNE-P albeit under a different
name and under two agreements rather than one agreement. The only difference will be
that this Commission, under Qwest's approach, will have no authority over the rates
terms and conditions of the "commercial agreement."
Qwest's approach is not consistent 'Nith sound regulatory practice and policy and
is not supported by applicable law. It would result in the absurd result of having the same
contractual arrangements for the provisioning of one service regulated pursuant to two
Staff's Response to Qwest's Motion to Dismiss
Utility Case No. 04-00245-Uf
different agreement subject to two different sets of rules, one under which this
Commission has no authority to assert its statutory duty of detennining whether such
agreements are discriminatory of consistent with the public interest. For these reasons,
Qwest's Motion should be denied.
Respectfully submitted by:
NM PUBLIC REGULATION COMJVIISISON
UTILITY D IVISI 0 N
:a. W _Nancy B. Bu s, Staff Counsel
224 East Palace Ave. - Marian Hall
Santa Fe, NM 87501
[phone]
nancv.bums~.state.nm.
StafPs Response to Qwest's Motion to Dismiss
Utility Case No. 04-00245-UT
" Exhibit
BEFORE THE PUBLIC UTILITY COMMISSION
OF OREGON
ARB 6
In the Matter of The Petition For Arbitration
5, And Request for Consolidation Filed By MCI
Metro Access Transmission Services, Inc.
ST AFF' S RESPONSE TO QWEST'S MOTION
TO DISMISS APPLICATION FOR REVIEW OF
NEGOTIATED COMMERCIAL AGREEMENT
INTRODUCTION
On September 3, 2004, Qwest filed a Motion to Dismiss Application for Review of
Negotiated Commercial Agreement ("'Motion to Dismiss ). Qwest s Motion to Dismiss notes
that Qwest and MCI Metro Access Transmission SeTVices, L.C entered into a commercial
agreen1ent under which Qwest agreed to provide Qwest Platform Plus service to MC!.
See
Motion to Dismiss at
Qwest relies on the result of the D.C. Circuif s decision in United Stales Telecom
AS;,~ociation v. FCC, 359 F .3d 554 (D.C. Cir. 2004) e~UST A II") to argue that Qwest is no longer
required to provide the local switching and shared transport nct\Vork elements in combination
with certain other services under sections 251 or 252 of the Act. See Id. However, in response
to the D.C. Circuit's USTA II decision the Federal Communications Commission ("FCC") issued
an Order and Notice of Proposed Rulemaking, FCC 04-179, we Docket No. 04-313 (released
August 20, 2004) ('~FCC Order ) that created, by temporary rule, a continuing Section 251 and
252 requirement for certain services, including those at issue in this docket, ARB 6.
ARGUMENT
II,The FCC Order, issued after the decision in USTA 11, governs the agreenlent
filed in ARB 6 and provides that agreements like the Commercial Agreement
need to be filed.
Staff agrees with Qwest that not all contracts need to be tiled with state commission for
approval under Section 252. The current question, however, is whether agreements that govern
1//
Page 1 -8T AFF'S RESPONSE TO QWEST'S MOTION TO DIStvIISS APPLICATION FOR
RE VIE WaF N GaTIA TED CO MMER CTAL AGREEMENT
JWJ InaVGENK312 Dc:partn1.:nt or Justicr:
1162 Court $lrc:tt Nf.
SJlcl'l1. OR 9730\ ..11196
[phone]
Exhibi t D
unbundled mass market switching and unbundled shared transport still must be tiled undet
Section 252. The recent FCC Order, at Paragraph 16, provides:
Specifically, we conclude that the appropriate interim approach here is torequire incumbent LECs to continue providing unbundled access to switching,enterprise market loops, and dedicated transport under the same rates, tenns, andconditions that applied under their interconnection agreements as of June 152004. These rates, terms, and conditions shall remain in place until the earlier the effective date of final unbundling rules promulgated by the Commission or six
months after rhe Federal Register publication
of the Order, except to the extentthat they are or have been superceded by (I) voluntary negotiated agreements, (2)an intervening Commission order affecting specific unbundling obligations (e.
an order addressing a pending petition for reconsideration), or (3) (with respect torates only) a state public utility commission order raising the rates for networke1enlents.
The FCC Order has required by temporary rule that "
unbundled access to switching,
entetprise market loops, and dedicated transport I" remain a Section 25 1 ( c) 0 b ligati 0 nandagreements (such as this one) covering these items must be filed under Section 252 for state
approval. Therefore, while parties can negotiate changes to rates, terms, and conditions in place
June 15 2004, they Cannot negotiate away the Section 252 filing requirement.2 According to the
FCC Order, the commercial agreement must be
filed for state approval and, therefore, Qwest'sMotion to Dismiss should be denied.
CONCLUSION
Qwest's Motion to Dismiss relies on
USTA II and an October 2002 FCC decision.
However. Qwest's reliance on these two opinions is misplaced now that the FCC has issued its
F 00 (nore of the FCC' s Order clarifies that "references to unbundled swirc hing encompass mass market cire uirswitching and all clements thaI must be made available when such
Switching is made available." Shared rransport one of those elements.
, In Paragraph 22 ofthe FCC Order, rhe FCC restricts opt-ins of frozen" unbundling obligations. However, tl:teFCC's restriction 00 ope-ins of frozen unbundling obligations does not alter the fact that the FCC has '"
frozenSection 251 obligations and that the FCC has provided that certain elements, as outlined in pClragraph , arecurr(:ntly Section 25 1 obligations and mw;t be filed for state approv:lI.J Memorandum Opinion and Order
In the Marrer oj Qwesr COmmunications International. I"c. Petition lorDer.:/aracory Ruling on the Scope of the DUlY to Fil~ ,md Obtain Prior Approval of N~gotiareci ContractualArrangement~under Section 252(a)(I), we Docket No. 02-17 Fcc Red 19337 (OCt. 4, 2002).
7""
Page'2 -STAFF'S RESPONSE TO QWEST'S MOTION TO DISMISS APPLICATION FOR
REVIEW OF NEGOrfA TED COtYfMERCIAL AGREEMENTlWJ/nal/GENK3 t 21
Dcp:utm~l\t or Ju~li.;e
1162 COUrt Slreet N c
SOI/el11. OR 97jO/-4096
(50:3) )73-(1321
, ,
most current iteration of Section 251(c) obligations for unbundled access to switching, enterprise
market loops, and dedicated transport.
As a result of the recent FCC Order, Qwest's Motion to Dismiss should be denied.
Furthermore, Qwest should be required to file portions of its Qwest Platform Plus agreement
with the Commission for approval.
DATED this ))J day of September 2004.
Respectfully submine~
HJ\RD Y ~RS
Attorney General
Jason W. Jones, #00059
Assistant Attorney General
Of Attorneys for the Public Utility Commission
of Oregon
Page 3 . STAFF'S RESPONSE TO QWEST'S MOTION TO DISMISS APPLICATION FORREVIEW OF NEGOTIATED COMMERCIAL AGREEMENT
JW1/naJ/GENIQ 121 DepOrtment ot'1u.uicc:
1162 Cuurt Sac:l:t NE
Salem. OR tJ7JO14096
(S03) J7S-6J22
~ ;
CERTIFICATE OF SERVICE
.......
I certify that on September 20, 2004, I served the foregoing ARB 6 ST AFF~
RESPONSE TO QWEST'S MOTION TO DISMISS APPLICATION FOR REVIEW OF
NEGOT1A TED COMMERCIAL AGREENlENT upon the parties hereto by sending a true, exact
and full copy by regular mail, postage prepaid to:
CARLA BUTLER
QWEST CORPORA T10N
421 SW OAK ST STE 810
PORTLAND OR 97204
MICHAEL A BEACH
MCI WORLDCOM COMMUNICATIONS INC
6312 S FIDDLERS GREEN CIR STE 600 EAST
ENGLEWOOD CO 80111
ALEX M DUARTE
QWEST CORPORATION
421 SW OAK ST STE 810
PORTLAND OR 97204
THOMAS DETHLEFS
QWEST CORPORATION
1801 CALIFORNIA ST RM 4900
DENVER CO 80202.1984
PETER H REYNOLDS
MCIMETRO ACCESS TAANSMISSION
SERVICES LLC
707 17TH STREET - STE 4200
DENVER CO 80202
T 0 HUYNH
MCI WORLDCOM NETWORK SERVICES INC
2678 BISHOP DR. STE 200
SAN RAMON CA 94583
STEVEN WEIGLER
AT&T LAW OEPT
1875 LAWRENCE ST STE 1500
DENVER CO 80202
MICHEL SINGER NELSON
MCIMETRO ACCESS TRANSMISSION
SERVICES LLC
707 17
TH STREET - STE 4200
DENVER CO 80202
)!
~ kr-
p--~
Jason W. Jones, #00059
Assistant Attorney Gencra1
Of Attorneys for the Public Utility Commission
of Oregon
Page 1. CERTIFICATE OF SERVICE
JWJ/naVGENK.3131 Depil~rncnl of Ju!\tic:e
1 L62 C:OU~ Street
Sah:m. OR 97')01.011.11)6
1':1'1'':"711_
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