20050916Response to Qwest notice.pdf

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Dean J. Miller
McDEVITT & MILLER LLP
420 West Bannock Street
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Boise, ill 83702
Tel: [phone]
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Attorneys for Level Communications, LLC
ORIGINAL
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MA TTER OF LEVEL 3
COMMUNICATIONS, LLC'S PETITION
FOR ARBITRATION PURSUANT TO
SECTION 252(B) OF THE
COMMUNICATIONS ACT OF 1934, AS
AMENDED BY THE
TELECOMMUNICATIONS ACT OF 1996
AND THE APPLICABLE STATE LAWS FOR
RATE, TERMS, AND CONDITIONS OF
INTERCONNECTION WITH QWEST
CORPORATION
Case No. QWE-O5-
LEVEL 3 COMMUNICATIONS,
LLC'S RESPONSE TO QWEST'
NOTICE OF SUPPLEMENTAL
AUTHORITY
Level 3 Communications, LLC ("Level 3 "), by and through its attorneys, hereby
submits this Response to Qwest's Notice of Supplemental Authority ("Notice ) filed
with the Idaho Public Utilities Commission ("Commission ) on September 13 , 2005.
In its Notice , Qwest submits as "supplemental authority" orders issued by the
Iowa Utilities Board and the Arizona Corporation Commission on similar, but not
identical , Motions to Compel filed by Level 3. Qwest's Notice provides no guidance as
to how these orders support Qwest's position on Level 3' s Motion to Compel in this
proceeding. In fact, both orders overwhelmingly support Level 3' s Motion to Compel
LEVEL 3 COMMUNICATIONS, LLC'S RESPONSE TO QWEST'S NOTICE OF SUPPLEMENTAL
AUTHORITY - 1
filed with this Commission. In both decisions , the Commissions found that information
that relates to possible discriminatory treatment of Level 3 by Qwest is relevant and
discoverable, including information regarding Internet access and VolP services
provided by Qwest or its affiliates. However, both orders limit the information
discoverable from Qwest and its affiliate to information from within their respective
states.
Level 3 contends that both the Iowa Board and the Arizona Commission wrongly
decided this issue. There is no legal basis for limiting the scope of Level 3' s discovery
to interconnection by Qwest with other CLECs and its affiliates and subsidiaries within
this state and preventing discovery regarding Qwest's interconnection with these same
parties in other jurisdictions. If Qwest is providing more favorable and, hence
discriminatory interconnection to any other CLEC or to Qwest's affiliate or subsidiary
anywhere, not just in the state where an arbitration is occurring, such discrimination is
directly relevant to the issue of whether, in this proceeding, Qwest is providing
nondiscriminatory access to Level 3 in compliance with its obligations under Section
251 (c )(2) of the Telecommunications Act of 1996 ("Act"
Moreover, after the Iowa Board ruled on the motion to compel, the Iowa hearing
provided a stark example of Qwest's willingness to say different things in different
proceedings. Boardmember Munns calls attention to the conflict in the passage quoted
below. Noting that Qwest has argued for placing certain traffic on trunks other than the
local interconnection trunks, Ms. Munns confronted Qwest Witness Easton with Qwest
testimony from a hearing some years prior:
LEVEL 3 COMMUNICATIONS, LLC'S RESPONSE TO QWEST'S NOTICE OF SUPPLEMENTAL
AUTHORITY - 2
BOARD MEMBER MUNNS: My final question is a follow-
up to a question that Mr. Cecil asked you about the
agreements that are in place as a result of the wireless
termination docket that we had and the transit docket that
was before the Board, and I don t believe you testified in
that docket.
THE WITNESS: No, I did not.
BOARD MEMBER MUNNS: But I believe another of
the Qwest witnesses, Mr. Cragg, testified.
THE WITNESS: Yes.
BOARD MEMBER MUNNS: Mr. Cragg, in answer
to a question that I asked him about using direct trunking to
separate traffic rather than commingling, and I'm going to
read you his answer and ask you how this case differs from
that case , and you can tell me if you don t understand enough
of the differences.
But Mr. Cragg said
, "
Direct trunking is " and then he
said
, "
could be more expensive. It depends on the amount
of traffic and the size of the transport. Commingling tandem
switching tends to be a little more efficient both from an
economic and from a network perspective. It makes better
use of the network facilities.
Do you agree with him on that?
THE WITNESS: I guess I would defer to Mr. Linse.
Mr. Cragg was a network witness, and Mr. Linse can speak
about network efficiencies.
BOARD MEMBER MUNNS: I think this witness
testified that both from an economic and from a network
perspective that it was more efficient.
THE WITNESS: Again, I would have to defer to Mr.
Linse because the economics are , of course, based on the
network cost.
See Iowa Transcript Vol III, p. 1045-1046. It is clear from the non-responsive answer
that Qwest had been caught in an inconsistency. That is the type of "say what helps us
in each hearing, even if it is not consistent" approach that both Level 3 and this
LEVEL 3 COMMUNICATIONS, LLC'S RESPONSE TO QWEST'S NOTICE OF SUPPLEMENTAL
AUTHORITY - 3
Commission have a right to know about and to confront. Quite similarly, Qwest should
not be allowed to say one thing about how it address the issues in this case in Idaho
while operating differently in Colorado, Iowa, or out of region.
Further, Qwest has not objected in any state to testimony introduced by Level
about its interconnection relationships with BellSouth, Verizon, or SBC throughout the
country. Level 3 has testified that it has been able to reach agreements on traffic
exchange issues in their regions on terms acceptable to Level 3. Qwest's refusal to
reach such terms begs the question of why other carriers can, as a technical matter
agree to Level 3' s language but Qwest cannot. If Qwest or its CLEC affiliates are
providing, for example , OneFlex VolP service in those RBOC territories, how they do
so - and how it is similar to or different from how Level 3 exchanges traffic with those
RBOCs - may shed important light on key issues in this case. As Qwest did not object
to the introduction of such out-of-region information (and in fact Qwest requested such
information in discovery, which Level 3 answered without objection), Level 3 should be
able to obtain the "rest of the story" on those other territories so that the Commission
can get a complete picture.
This common-sense response is also supported by federal law. Section 251 of
the Act and the FCC's rules governing interconnection compel an analysis of Qwest'
interaction with other CLECs and its affiliates and subsidiaries beyond the boundaries
of any particular state. Section 251 (c )(2) is unequivocal. ILECs must provide
interconnection that is "equal in quality to that provided. . . to itself or to any
subsidiary, affiliate, or any other party to which the carrier provides interconnection." 1
1 47 D.C. ~ 251(c)(2)(C).
LEVEL 3 COMMUNICATIONS, LLC'S RESPONSE TO QWEST'S NOTICE OF SUPPLEMENTAL
AUTHORITY - 4
ILECs must also offer "rates , terms and conditions that are just, reasonable , and
nondiscriminatory, in accordance with. . . the requirements of this section and section
252.2 Thus, ILECs cannot offer interconnection to one CLEC on more favorable terms
or conditions than it offers any other CLEC.3 In addition, the ILEC cannot favor its
affiliates or subsidiaries with more favorable terms and conditions of interconnection
than it offers to CLECs. To allow an ILEC to avoid the nondiscrimination obligations
outlined in the Act would undermine the most fundamental principles in the Act:
putting CLECs on equal footing with each other and the ILECs.
As the FCC noted in the Non-Accounting Safeguards Order:
a BOC may have an incentive to discriminate in providing exchange access
services and facilities that its affiliate s rivals need to compete in the interLA T A
telecommunications services and information services markets. For example, a
BOC may have an incentive to degrade services and facilities furnished to its
affiliate s rivals, in order to deprive those rivals of efficiencies that its affiliate
enjoys. Moreover, to the extent carriers offer both local and interLA T A services
as a bundled offering, a BOC that discriminates against the rivals of its affiliates
could entrench its position in local markets by making these rivals' offerings less
attracti ve. 4
This is the very reason the nondiscrimination obligation applies to affiliates and
subsidiaries.
47 D.C. ~ 251(c)(2)(D).
3 This conclusion is reinforced by the requirements of section 252(i) of the Act which provides that a local exchange
carrier must make any interconnection provided under an agreement approved under this section to which it is a
party available to any other requesting telecommunications carrier upon the same terms and conditions as those
provided in the agreement.
See Implementation of the Non-Accounting Safeguards of Sections 271 and 272 of the
Communications Act of 1934 as amended CC Docket No. 96-149, First Report and Order and Further
Notice of Proposed Rulemaking, 11 FCC Red 21905 , 21913 (1996) ("Non-Accounting Safeguards
Order
See also Chase 3000 v. Nebraska Public Service Commission, et al.Case No. C 1 04-4167, District
Court of Lancaster County, Nebraska, dated June 29, 2005 (State commission has jurisdiction to
regulate noncompetitive and discriminatory activity between regulated and nonregulated affiliates
pursuant to the Telecommunications Act of 1996 and failure to do so would frustrate the purpose of the
Act.
LEVEL 3 COMMUNICATIONS, LLC'S RESPONSE TO QWEST'S NOTICE OF SUPPLEMENTAL
AUTHORITY - 5
Moreover, the nondiscrimination obligation applies without regard to geographic
boundaries. The law does not limit the nondiscrimination obligation to within the
borders of any particular state. Thus, the interconnection Qwest provides to other
CLECs or to its affiliates or subsidiaries outside of Idaho is just as critical to
ascertaining whether Qwest is offering nondiscriminatory interconnection to Level 3 as
the interconnection Qwest provides within a particular state.6 Both sets of information
are relevant to Qwest's compliance with its legal nondiscrimination obligation. Level
3' s discovery on Qwest's interconnection with other CLECs and its affiliates and
subsidiaries should be permitted and not in any way limited by irrelevant and artificial
geographic boundaries. To do otherwise , would completely undermine the
nondiscrimination obligation set forth in Section 251 (c )(2).
The FCC's rules regarding interconnection provide further guidance on this
issue. Rule 51.305(c) and (d) require that evidence of interconnection at a particular
point in a network (or at a particular level of quality), using particular facilities
constitutes substantial evidence that interconnection is technically feasible at that point
or at substantially similar points in networks employing substantially similar facilities.
The FCC rules , in other words , do not limit the examination of the interconnection an
ILEC is permitting to the ILEC's territory, the particular state in which the
6 As has been demonstrated by Qwest's responses to Level 3 discovery requests in other states, its
subsidiary QCC provides service on terms that unreasonably discriminate in favor of QCC. For
example, in several other states and only after having been compelled to respond to Level 3' s discovery
requests , Qwest admitted in confidential responses to Level 3 discovery requests that it (or one of its
subsidiaries) utilizes network architectures and interconnection methods for the provision of ISP-bound
and VoIP services that are very similar to those proposed by Level 3 in this arbitration. This is further
substantiated by the fact that Qwest, when presenting information to investors, shows a vastly different
architecture within its operating territory than outside of it. See Exhibit - attached hereto. (THIS IS
PAGE 16 OF THE QWEST INVESTOR PRESENTATION)
47 C.R. ~51.305(c) and (d).
LEVEL 3 COMMUNICATIONS, LLC'S RESPONSE TO QWEST'S NOTICE OF SUPPLEMENTAL
AUTHORITY - 6
interconnection issue arises, or to any particular geographic area. What is relevant is
whether such interconnection is accomplished with the ILEC, not where it occurs.
Therefore, information about Qwest's networks nationwide is relevant to determining
whether Qwest's interconnection proposals are discriminatory when compared to
Qwest' relationships with its affiliates.8 Accordingly, this Commission should not limit
the scope of discovery to Idaho.
Qwest has failed to show that the alleged burdensomeness of these requests
outweighs the critical nature of the information sought. To the contrary, Qwest has
merely alleged that the requests are burdensome, without citing any evidence of cost or
man-hours of time that would be required to respond. Qwest must do more to sustain
its objection, given the very broad scope of discovery and given that the information
sought by Level 3 goes to a very key, nondiscrimination obligation in the Act.
Similarly, Qwest's objection to responding to Level 3's requests seeking
information regarding other CLECs because Level 3 has access to publicly-filed
8 Because of the vastly distributed nature of the Internet, no carrier can offer services that permit the
exchange of VoIP with switched networks controlled by incumbent LECs on any terms other than
nationwide. In other words, no VoIP customer would have cause to purchase such a product if by its
terms it were offered in SBC, Verizon and BellSouth territories but not in Qwest's 14 state region.
47 C.F .R. ~51.305(c)(8) (In the context of interconnection negotiations (and arbitrations), ILECs have
a duty to provide information necessary to reach an agreement, but the rule does not restrict that duty to
specific geographic areas or based upon jurisdictional lines). See also In the Matter of Implementation
of the Local Competition Provisions of the Telecommunications Act of 1996, CC Dkt. No. 96-, First
Report and Order, 11 FCC Red. 15433 , ~ 204, 205 (reI. August 8 , 1996) Local Competition Order
Incumbent LECs must prove to the appropriate state commission that interconnection or access
at a point is not technically feasible. Incumbent LECs possess the information necessary to assess the
technical feasibility of interconnecting to particular LEC facilities. Further, incumbent LECs have a
duty to make available to requesting carriers general information indicating the location and technical
characteristics of incumbent LEC network facilities. Without access to such information, competing
carriers would be unable to make rational network deployment decisions and could be forced to
make inefficient use of their own and incumbent LEC facilities, with anticompetitive
effects.)(Emphasis added.
LEVEL 3 COMMUNICATIONS, LLC'S RESPONSE TO QWEST'S NOTICE OF SUPPLEMENTAL
AUTHORITY - 7
interconnection agreements is not sustainable.1O Qwest attempts to oversimplify Level
3' s requests by suggesting that Qwest can respond by simply producing interconnection
agreements. Level 3 does not agree that Qwest can respond to Level 3' s requests for
information regarding interconnection it provides to other CLECs, by simply producing
interconnection agreements and the Commission should not automatically accept
Qwest's assertion. For example, Qwest should know the CLECs that are commingling
traffic on single trunks because it must bill those CLECs based upon factors and does
not need to review the interconnection agreements to make that determination. Even if
Qwest must produce the interconnection agreements as information that is relevant to a
particular request, Qwest should be compelled to produce these agreements. It would
be extremely difficult, if not impossible for Level 3 to search Commission records and
locate all of the most current interconnection agreements and, particularly, all of the
relevant amendments to each Qwest/CLEC agreement. Moreover, Qwest can simply
inquire of its billing group where such interconnection arrangements occur. Qwest is in
the best position to provide this information, since it must , in order to implement each
agreement, have a current file of the most current agreement and all relevant
amendments for each CLEC in each state.
WHEREFORE, Level 3 requests that the Commission grant Level 3' s Motion to
Compel.
10 In addition to the specious nature of this objection, Qwest has actually argued for and won the right
to pursue interconnection methods in other states similar to those requested by Level 3 in this very
proceeding. In one of the instances that Level 3 has been able to determine upon its own investigation
Qwest actually appealed an Iowa Utilities Board order because the Board would not allow Qwest to
combine all forms of traffic over a single set of interconnection trunks and exchange that traffic with
other carriers including but not limited to third party independent telephone companies and wireless
earners.
LEVEL 3 COMMUNICATIONS, LLC'S RESPONSE TO QWEST'S NOTICE OF SUPPLEMENTAL
AUTHORITY - 8
DATED this day of September, 2005.
Respectfully submitted
McDEVITT & MILLER LLP
\)lLea J. 1 ler
McDevitt & Miller LLP
420 W. Bannock
Boise, ID 83702
Phone: [phone]Fax: [phone]
Counsel for Level 3 Communications, LLC
LEVEL 3 COMMUNICATIONS, LLC'S RESPONSE TO QWEST'S NOTICE OF SUPPLEMENTAL
AUTHORITY - 9
CERTIFICATE OF SERVICE
I hereby certify that on the ay of September, 2005 , I caused to be served
via the methodes) indicated below, true and correct copies of the foregoing document
upon:
Jean Jewell , Secretary Hand Delivered
Idaho Public Utilities Commission
S. Mail472 West Washington Street
O. Box 83720 Fax
Boise, ID 83720-0074 Fed Express
i i ewell uc.state.id. us
E-mail
Mary S. Hobson Hand Delivered
STOEL RIVES LLP
S. Mail101 S Capitol Boulevard - Suite 1900
Boise , ID 83702-5958 Fax
Telephone: [phone] Fed Express
Facsimile: [phone]
E-mailmshobsonstoel.com
Thomas M. Dethlefs Hand Delivered
Senior Attorney
S. MailQwest Services Corporation
1801 California Street - 10th Floor Fax
Denver, CO 80202 Fed ExpressTelephone: [phone] E-mailFacsimile: [phone]
Thomas. Dethl efs west. com
LEVEL 3 COMMUNICATIONS, LLC'S RESPONSE TO QWEST'S NOTICE OF SUPPLEMENTAL
AUTHORITY - 10
Exhibit A
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Exhibit A
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