20070831Opposition to Qwest motion for stay.pdf

Molly O'Leary (ISB No. 4996)
RICHARDSON & O'LEARY PLLC
515 North 2ih Street
O. Box 7218
Boise, Idaho 83707
Telephone: [phone]
Fax: [phone]
Mail: molly(fYrichardsonandoleary.com
Theodore A. Livingston
Dennis G. Friedman
MAYER, BROWN, ROWE & MAW LLP
71 South Wacker Drive
Chicago, IL 60606-4637
Telephone: [phone]
Fax: [phone]
Mail: dfriedman(fYmaverbrown. com
Dan Foley
General Attorney & Assistant General Counsel
AT&T WEST
P. O. Box 11010; 645 E. Plumb Lane, B132
Reno, Nevada 89520
Telephone: [phone]
Fax: [phone]
Mail: df6929~att.com
RECEIVED
lUUl AUG 30 i P 4: I b
Attorneys for Plaintiff AT&T Communications of the Mountain States, Inc.
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
AT&T COMMUNICATIONS OF THE MOUNTAIN )
STATES, INC.
Complainant
vs.
QWEST CORPORATION
Respondent.
Case No. QWE-06-
AT&T'S OPPOSITION TO QWEST'S
MOTION FOR STAY
AT&T Communications of the Mountain States, Inc. ("AT&T") hereby submits its
opposition to Qwest Corporation s ("Qwest") motion to stay this proceeding pending a decision
by the federal district court on Qwest's motion to dismiss AT&T's protective suit there.
Qwest's
motion should be denied for several reasons, primarily because there is no good reason why this
case, which was filed first and is substantially farther along than the federal case, should be
stayed in favor of the federal case, which AT&T filed purely as a protective measure.
BACKGROUND
Nearly a year ago, on August 21 2006, AT&T filed its complaint against Qwest here at
the Commission. That complaint contained a single count alleging a breach of contract by
Qwest.
Qwest filed a motion to dismiss AT&T's complaint. After full briefing on that motion
supplemental briefing on questions raised by the Commission, and oral argument, the
Commission denied Qwest's motion on February 16 2007. Att. 1 hereto. The Commission also
directed AT&T to amend its complaint to provide more detail and ordered AT&T and Qwest to
file supplemental briefs addressing specific questions "to determine the complaint's gravamen
and address the statute of limitations issue.Id.
AT&T filed its amended complaint and AT&T and Qwest filed briefs addressing the
Commission s questions. On April 12, 2007, the Commission, standing by its prior denial of
Qwest's motion to dismiss , ordered the parties to develop a schedule for the full case. Att. 2
hereto. The parties then did so, developing a schedule for settlement discussions, discovery,
three rounds of written testimony, evidentiary hearings, and post-hearings briefs.
The case has proceeded on that schedule, with a few agreed extensions along the way.
Settlement discussions have been held. AT&T has served a first round of discovery and Qwest
AT&T OPPOSITION TO
MOTION TO STAY - 2
has responded.The parties have entered a protective agreement.AT&T filed its direct
testimony on August 16.
During briefing on Qwest's motion to dismiss, Qwest raised an issue regarding whether
the Commission has authority to grant the full relief requested by AT&T. The Commission has
not addressed that issue. Out of an abundance of caution and to avoid any possible future
problems under the Idaho statute of limitations, AT&T filed a materially identical complaint in
Idaho state court on January 31 , 2007, while Qwest's motion to dismiss was pending.That
complaint was filed purely as a protective measure in case the Commission was ultimately to
fmd it could not grant all the relief to which AT&T is entitled. AT&T served that complaint on
Qwest on May 30, 2007, to preserve its protective court case, if such proves necessary to pursue
and to comply with LR.c.P. Rule 4(a)(2).
AT&T asked Qwest to agree to stay the state court proceeding pending the outcome of
the ongoing case here, but Qwest refused. Instead, Qwest removed the case to federal court and
filed a motion to dismiss that is in substance nearly identical to the motion to dismiss that the
Commission already fully considered and denied. AT&T has moved to stay the federal court
case pending the outcome of this proceeding. Att. 3 hereto.
ARGUMENT
The Commission should deny Qwest's motion for stay.Qwest admits that the
Commission has jurisdiction over AT&T's claim. Qwest Motion at 2, 7. Qwest admits that this
Commission did not grant its motion to dismiss (id. at 3), which was based on the same theory
Qwest is now pursuing in federal court. And Qwest does not (and could not) deny that this case
is substantially ahead of the federal proceeding. The Commission already has ruled on Qwest's
motion to dismiss and AT&T has filed its direct testimony.Qwest is preparing its reply
AT&T OPPOSITION TO
MOTION TO STAY - 3
testimony and the parties are engaged in discovery. Given these undisputed facts, there is no
legitimate basis for staying this case in favor of a purely protective suit that AT&T filed only out
of an abundance of caution.
The only purpose behind Qwest's motion for stay is to get a second bite at the apple - a
de facto interlocutory appeal on its failed motion to dismiss. Qwest's lone argument is that the
federal district court has jurisdiction to "review" or take "appeals" from state commission
decisions interpreting interconnection agreements and that, because the court review of legal
issues is de novo it should be allowed to relitigate its motion to dismiss now. Qwest Motion at
, 6-Qwest has cited no authority for its contention that federal courts have exclusive
jurisdiction to review state commission decisions interpreting interconnection agreements, 1 but
even if Qwest were correct it would not matter. The mere fact that a federal court could have
jurisdiction to review a state commission s decision on claims for breach of an interconnection
agreement does not mean Qwest has any right to insist on a stay of state commission proceedings
and an immediate "appeal" to federal court on every lost issue. Indeed, permitting such instant
interlocutory review throughout any state commission proceeding on an interconnection
agreement would be procedural nightmare.
Moreover, Qwest's argument about a federal court's power to hear "appeals" of state
commission decisions that interpret interconnection agreement ignores that state commissions
I The federal Telecommunications Act does not say that federal district courts have exclusive jurisdiction
to review decisions that interpret and enforce interconnection agreements after they have been approved.
The bar on state court jurisdiction in Section 252(e)(4) of the federal Telecommunications Act extends
only to "the action of a State commission in approving or rejecting an agreement under this section." 47
C. ~ 252(e)(4) (emphasis added). Indeed, some federal courts have taken jurisdiction over breach of
interconnection agreement claims pursuant to their supplemental jurisdiction under 28 U .c. ~ 1367(a),indicating that such claims could (and would) be litigated in state court absent another claim in the case
that gives rise to original federal court jurisdiction. See Southwestern Bell Tel. Co. v. Brooks FiberComms. Of Okla., Inc.235 F.3d 493, 498 (10th Cir. 2000); Connect Comms. Corp. v. Southwestern bell
Tel.467 F.3d 703, 708 (8th Cir. 2006). AT&T's breach of contract claim has nothing to do with the
Commission s order originally approving the Qwest-AT&T interconnection agreement.
AT&T OPPOSITION TO
MOTION TO STAY - 4
frequently interpret and enforce such agreements in the first instance. This Commission is in the
midst of doing precisely that, and it should be permitted to complete the job before Qwest is
allowed to begin seeking second opinions on its failed motion to dismiss. All Qwest is doing
now is trying to hijack AT&T's protective court case and turn it into a vehicle for such an
unauthorized "appeal.
Qwest also continues to misrepresent AT&T's claim in hopes of making it appear so
federal" that Qwest should be allowed to skip ahead to an interlocutory review. Specifically,
Qwest asserts that AT&T's claim "flow(sJ from Qwest' alleged failure to follow
federal law.
Qwest Motion at 6. It does not. AT&T's claim flows from Qwest's failure to follow its
interconnection agreement with AT&T. And that claim, as the Commission already held, is
governed by state law. Att. 1.
Qwest's claim that "judicial and agency economy are served" by a stay is baseless.
the contrary, economy has been undermined by Qwest refusing to agree to a stay of this case
and forcing AT&T to fully brief Qwest's same motion to dismiss allover again. See Roberts
Hollandsworth 616 P.2d 1058 , 1061 (Idaho 1980) (cited in Qwest Motion at 5) (where first
forum had ruled against party on summary judgment and no party denied that that forum had
jurisdiction to rule on the merits, addressing same issues in later-filed case in second forum
would "needlessly and substantially increaseD costs to the (party that prevailed in first forum), is
a waste of judicial resources, and conjures up the possibility of conflicting judgments by state
and federal courts
2 Of course, it would not matter even if AT&T's claim were "federal " for, as explained above, nothinggives Qwest the right to have this case stayed in the middle of testimony so it can ask the court for a
different decision on its motion to dismiss.
AT&T OPPOSITION TO
MOTION TO STAY - 5
CONCLUSION
In sum, Qwest's motion for stay would irrationally prevent the first-filed, more advanced
Commission case from proceeding and force AT&T to start allover again in federal court
creating waste, inefficiency, and the risk of inconsistent decisions. Regardless of whether Qwest
ultimately could "appeal" the Commission s denial of its motion to dismiss to federal court at the
end of this case, it has no right to demand that this case stop for an instant interlocutory appeal
now. Rather, the Commission should have the first opportunity to interpret the interconnection
agreement that it originally approved and should reject Qwest's attempt at forum-jumping.
DATED this 30th day of August, 2007.
RICHARDSON & O'LEARY, PLLC
By:
unications of theAttorneys for
Mountain S es, Inc.
AT&T OPPOSITION TO
MOTION TO STAY - 6
ATTACHMENT
------
Office of the Secretary
Service Date
February 16, 2007
BEFORE TIlE IDAHO PtJBLIC UTILITIES CO:MMISSION
Attachment 1
AT&T COMMUNICATIONS OF THE
MOUNTAIN STATES, INC.
vs.
CASE NO. QWE-T-06-17
COMPLAINANT,
QWEST CORPORATION
RESPONDENT.ORDER NO. 30247
On August 21, 2006, AT&T Communications of the Mountain States filed a
complaint agajnst Qwest Corporation, alleging that Qwest entered into "secret" interconnection
agreements with Eschelon Telecom and McLeodUSA Telecommunications Services. The
complaint alleged a single claim of breach of contract, stating that Qwest violated unspecified
terms of an interconnection agreement between AT&T and Qwest (the "Interconnection
Agreement") by not disclosing these "secret" agreements. Complaint at 7-
On September 6, 2006, the Commission issued a summons to Qwest to answer the
complaint The Commission also granted the Motions for Limited Admission filed by AT&T's
out-of-state counsel. Order No. 30125. Qwest timely filed its answer to the complamt as a
Motion to Dismiss on September 27, 2006. AT&T then filed a response to Qwest's Motion to
Dismiss on October 26, 2006.
On November 7, 2006, Qwest filed a Motion for Oral Argument with respect to the
issues presented in the Motion to Dismiss. AT&T filed its response joining in Qwest's request.
The Commission granted the Motion, and set the oral argument for January 24, 2007. Order No.
30195. The Commission also ilirected the parties to file briefs addressing certain issues about
which the Commission required further information. Id.
POSmON OF THE PARTIES
Qwest asked the Commission to dismiss AT&T's complaint on two grounds. First,
Qwest asserted that AT&T's claim is actually a .'federal claim masked in state law clothes.
Motion to Dismiss at 2. Given the federal cl~ Qwest insisted the federal statIlte of limitations
of two years applies to any claim brought under the federal Telecommunications Act of 1996
ORDER NO. 30247
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Case 1 :07 -cv-OO272-MHW
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Document 8-4 Filed 07/16/2007 Page 2 of 6
(the "1996 Act"). Qwest argued that the only reason AT&T is bringing this complaint as abreach of state contract law is to avoid the operation of the two-year limitations period thatapplies to these claims under 47 D.C. g 415. J Tr. at 4. Second, the Oregon Public UtilityCommissions recent decision to dismiss a similar complaint against Qwest under the two-
yearstatute of limitations soould c()lIat~rany estop AT&T from filing this complaint. At oralargument, counsel for Qwest conceded that the second ground should be stricken in light of the
Washington Utilities and TransP0rtation Commission s contrary decision. Thus, we will notconsider the second ground. Tr. at 7.
AT&T asserted that "all claims seeking interpretation and enforcement ofinterconnection agreements are governed by state law.Tr. at 19. At oral argument AT&T's
counsel explained that the mtercoIi1I1ection agreement included "an obligation on the part of
Qwest to make available the terms
. -
and conditions of any other agreement for interconnection,unbundled network elements and resale services in those
agreements' entirety.Id. at 17.AT&T concedes this "obligation" is based upon Section 252(il of the 1996 Act but insisted thattheir interconnection agreement deviates from or "doesn t precisely track the language of252(i)"
and it is this deviation or difference that requires interpretation of the agreement by the
Commission. Id. at 24, 20.
DISCUSSION AND FINDINGS
At the outset, we first address our jurisdiction. In its Motion to Dismiss., Qwest
stated that "(t)his Commission s jurisdiction to hear actions to enforce the terms of
interconnection agreements derives, not from state law, but from the Federal Act. '" Thus
without delegated authority, the Commission lacks jurisdiction to act." Motion to Dismiss at 10.
We are puzzled that Qwest declares this, even ;Uter our Supreme Court has clearly stated that the
Commission does have the authority to interpret and enforce an interconnection agreement.
McNeal v. ldalw Public Util. Comm '
n, 142 Idaho 685, 132 P.3d 442 (Idaho 2006). In McNeal
the Court held that "Federal law indicates that a Commission does have the authority to interpret
1 "There is no question that AT&T has known about these (undisclosed) agreements. the McLeod and Eschelonagreements,... since at least the summer of 2002." Tr. at 4.
47. U.C. ~ 252(i) provides in pertinent part: A local exchange carrier shan make available any interconnection
service, or network element provided under an agreement approved under this section to which it is a party to any
other requesting telecommunications carrier upon the same tenns and conditions as those provided in the agreement.
ORDER NO. 30247
and enforce an interconnection agreement"
Id. at 689, 132 P.2d at 446. In light of this ruling,we find that we have jurisdiction to hear this matter.
It is axiomatic that the interpretation of a contract begins with the language of the
contract itself. Albee v. Judy, 136 Idaho 226 31 P.3d 248,252 (2001). If the contract terms areclear and unambiguous, the meaning and effect of the contract are questions of law to be
det.ermmed fr()m the plain meaning of its words. Id. If the contract terms are ambiguous, thenthe interpretation Qf those provisions is a question of fact which focuses upon the intent of the
parties. Bream v. BensCQter 139 Idaho 364, 79 P.3d 723 (2003).
Turning to the Agreement to see what its terms provide regarding a choice of law
, welook at Section 21.1 (Governing Law). This provision states:
This Agreement shall De governed by and construed in accordance with the
Act and the FCC's rules and regulations, except insofar as state law may
control any part of this Agreement, in which case the domestic laws of theState of Idaho.without regard. to its conflicts of law principles, shall govern.
(Emphasis added). Like the 1996 Act, the section quoted above "is not a model of clarity" upon
fustreading. AT&Tv. Iowa UtiJitks Board.525 U.S. 366, 397 19 S.Ct.721, 738 (1999). When
we asked the parties to address the effect and meaning of this provision with respect to the
complaint, the parties offered little illumination. Qwest asserted that state law would "come into
play in the relatively rare instances ... where federal law and/or FCC rulings leave a role for state
law " and otherwise reiterated its argument that AT&T's claim was federal in nature and federal
law would apply to its claim. Qwest Brief at 11. AT&T stated that this section "confirm(s) that
state law governs the interpretation and enforcement of interconnection agreements
" and noted
that there is a role for state law, such as when a breach of contract occurs, and that "state law has
a key role in enforcing interconnection agreements." AT&T Brief at 14, 15.
Fortunately, there are other contract terms that, when read together, clarify the point
Throughout the Agreement there are provisions that require compliance with various
requirements of federal and state law. As the parties state themselves,
This Agreement is a combination of agreed terms and terms imposed by the
(Commission s) arbitration under Section 252 of the Communications Act of
1934, as modified by the Telecommunications Act of 1996, the rules and
regulations of the Federal Communications Commission and the orders, rulesand regulations of the Idaho Public Utilities Commission... .
ORDER NO. 30247
Case 1 :O7-cv-OO272-MHW
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Document 8-4 Filed 07/16/2007 Page 4 of 6
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Agreement (Recitals) at 4 (emphasis added). Thus, it is no surprise that the Agreementaddresses requirements of both federal and state law.
We also turn to Section 27., Dispute Resolution, in the Agreement. This provision
provides that a dispute regiU'ding the Agreement may be resolved by
arbitration. When coupledwith Section 27.3, it states a fairly detailed set of instructions for how such arbitration should be
conducted. Pertaining to our examination here is the Parties
' agreement that "rt lhe laws of Idahoshallszovern the construction and. intemretation of this AereemeTlt," (Emphasis added). If t.ieI'Qatter were submitted to arbitration, there is no question as to what law would be applied to the
dispute. Based upon these provisions together, we find that the Governing Law provision is
unambiguous, and that the ~es intended that the Agreement be construed under state law
while recognizing that the parties must also comply with various federal requirements.
There is also a substantial body of cases
SUPPorting our finding that state law governs
the question of interpretation and enforcement of interconnection agreements.
See, e.g., Pacific
Bell "\I. Pac-West Teleco~ 325 F.3d 1114, 1128 (91b Cir. 2003). In order to determine whetherQ~ violated the Interconnectioll Agreement as alleged by AT&T, we will have to interpret its
provisions. If a violauoo is found, we will need to explore how to enforce the provisions. Thus
we conclude that state law governs this dispute.
Having found that state law applies, we must next decide whether the statute of
limitations would put an end to this complaint.
As noted above, Qwest argued that the federaltwo-year statute of limitations found at 47 V.C. ~ 415 should be applied because AT&T isactually hiding a fed.erallaw matter in state law clothes and federal law should govern. AT&T
argued that the five-year statute of l1n;tltations provided by Idaho Code ~ 5-16 for a breach of
contract action should apply because the matter is governed by state law.
In the alternativeAT&T argued that if federal law is applied. the four-year statute of limitations provided by 28
C. ~ 1658(a) should apply.
In answering this question, we note that the Idaho Supreme Court has recently held
that "the true gravamen of the plaintiffs' claims should control the question of which statute of
limitations is applicable. rather than the manner in which the claims are actually pled."
HaydenLake Fire Protection District v. Alcorn 141 Idaho 388, 111 P.3d 73 (Idaho 2005) (emphasis in
original). Thus, if the gravamen of the complaint is a breach of contract, the five-year statute of
ORDER NO. 30247
---.
limitations would likely apply. If the gravamen of the complaint is a violation of the federalstatute, a federal statute of limitations might apply.
To muddy the water even more, more than one federal statute of limitations
mightapply to this complaint: Either the two-year statute of limitations provided under 47 D.
C. ~415 or the four-year statute oflimitations under 28 D.C. ~ 1658(a) might apply, if we were to
find that the gravamen of AT&T's claim is federal in nature. The 1996 Act merely amended thefederal Act of 1934, and thus the two-year statute of limitations provided by the 1934 Act seems
the logical statute to apply. See AT&T v. Iowa Utilities Board, 525 U.S. at 377; Pub. L. 104-104
110 Stat. 56, ~ 1 (b). However, certali1 case law indicates that the catch-all statute
of limitationsunder 28 D.C. ~ 1658(a) may be the applicable law for a breach of a provision in the
1996Act.
Turning back to AT&T's complaint, we find that additional briefing is necessary to
determine the complamt's gravamen and address the statute of limitation issue. Therefore, we
direct AT&T to amend its complaint by March 9, 2007 to state with particularity the provisions
of the Interconnection Agreement that were allegedly breached and the timeframe applicable for
calculating damages. We further direct AT&T to concurrently file a brief that addresses the
followiDg issues:
1. "When did AT&T have notice of the "secret" agreements such that the
Idaho statute of limitations would start to nm?
2. Three statutes of limitations have been proposed by the parties aspotentially applying to this matter: (1) a two-year statute of limitations
provided by 47 D.C. g 415; (2) a four-year statute of limitations
provided by 28D.C. ~ 1658(a); and (3) a five-year statute oflimitations
provided by Idaho Code ~ 5-16. Which statute of limitations applies to
this matter?
In addition, we direct Qwest to file a brief by March 23, 2007 that addresses the two issues set
forth above.
See City of Rancho Palos Verdes. California v. Abrams 544 U.S. 113, 125 S.Ct 1453, 1460 fn. 5 (2005) ("(slincethe claim here rests upon violation of the post-I990 (1996 Act), 9 16S8(a) would seem to apply.
);
SpireCOmm1Dlications, 1m:. v. Baca, 269 F.Supp.2d 1310, 1320 (D. N.M., 2003); Veraon Maryland 1m:. f/kIa/ BellAtlantic~Maryiand, Ine. v. RCN Telecom Services, 1m:. f/kIa RCN Telecom Services of Maryland Im:.232 F.Supp.539, 554 (D. Md., 2002) ("When the amendment (to the actJ itself creates the cause of action upon which the
plaintiff sues, without reference to the preexisting act, the cause of action clearly aris(es) under the post-l990amendment. and the general four-year statnte of liInitations applies.
);
Bell Atlantic-Pennsylvania
y.
PennsylvaniaPublic Utility Commission, 107 F.Supp.2d 653 (E..D.Pa., 2000).
ORDER NO. 30247
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Document 8-4 - --..u
_-...--... .. ---
Filed 07/16/2007 Page 6 of 6
Case 1 :07-cv-O0272-MHW
ORDER
IT IS HEREBY ORDERED that Qwest's Motion to Dismiss is denied at this time.
IT IS FURTHER ORDERED that AT&T shall amend
its complaint by March 92007 to state with particularity which provisions of the
Interconnection Agreement betweenAT&T and Qwest were allegedly breached by Qwest, and what is the timeframe for which it
seeks damages.
IT IS FURTHER ORDERED that AT&T shall submit a brief by March 9, 2007addressing the two issues set forth above, and that Qwest shall submit a brief by March 23, 2007addressing the two issues set forth above.
DONE by Order of the Idaho Public Utilities Commission at Boise
, Idaho this 1/'.j4..day of February 2007.
MARSHA H. SMITH, COMMISSIONER
AITEST:
~eU
Commission Secretary
O:QWE-T-G6-J7 cg4
ORDER NO. 30247
ATTACHMENT 2
-'----'-....
Case 1 :O7-cv-OO272-MHW
'-'
Document 8-
--.-----..-.--
Filed 07/16~mei,ge 1 of3
Office of the Secretary
Service Date
May 22, 2007
BEFORE THE IDAHO PUBLIC UTILITIES COMMIsSION
AT&T COMMUNICA nONS OF THE
MOUNTAIN STATES, mc.,
COMPLAINANT
vs.
QWEST CORPORATION
RESPONDENT.
CASE NO. QWE-T-06-17
NOTICE OF
CASE SCHEDULING
ORDER NO. 30319
On August 21, 2006, AT&T Communications of the Mountain States filed acomplaint against Qwest Corporation, alleging that Qwest entered into "
secret" interconnectionagreements with Eschelon Telecom and McLeodUSA Telecommunications Services. Thecomplaint alleged a single cIaml of breach of contract, stating that Qwest violated
unspecifiedterms of an inteIconnecti.on agreement between AT&T and Qwest (the "InterconnectionAgreement") by not disclosing these ""secret" agreements. Complaint at 7-
In Order No. 30297 issued April 12, 2007, the Commission directed the parties to
convene a telephonic prehearing conference within 28 days for the purpose
of developing aschedule to process this case. The parties convened their scheduling conference on May 2
, 2007.The parties proposed the following schedule, which we hereby adopt
CASE SCHEDULE
AcnON
Qwest Answer .
Discovery begins
Initial settlement conference - to be conducted betweenthe parties
DATE
May 14 2007
May 15,2007
Week of June 4, 2007
July 9, 2007
September 10, 2007
November 9, 2007
November 30, 2007
NOTICE OF CASE SCHEDULING
ORDER NO. 30319
AT&T's Direct Prefiled Testimony
Qwest's Reply Prefiled Testimony
AT&T's Rebuttal Prefiled Testimony
Summary judgment motions and discovery cut-off date
---.--.---...--- - ----.-..--.-.--
1. When did AT&T have notice of the "secret" agreements such that theIdaho statute of limitations would start to run?
2. Three statutes of limitations have been proposed by the parties aspotentially applying to this matter: (1) a two-year statute of limitationsprovided by 47 D.C. ~ 415; (2) a four-year statute of limitationsprovided by 28 U.C. 9 1658(a); and (3) a five-year statute ofIimitationsprovided by Idaho Code 9 5-216. Which statute of limitations applies tothis matter?
Id. The parties timely filed their responses (Qwest requested and was granted a slight extension
of time to file its brief).
DISCUSSION AND FINDINGS
We direct the parties to convene a telephonic prehearing conference withintwenty-eight (28) days of the service date of this Order with the
Staff Attorney assigned to this
matter for the purpose of developing a schedule to process this case.
ORDER
IT IS HEREBY ORDERED that the parties shall convene a telephonic
prehearing
conference within twenty-eight (28) days of the service date of this Order for the purpose ofdeveloping a schedule to process this case as set forth above.
ORDER NO. 30297
Case 1 :07-cv-00272-MHW
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...
Document 8-6 Filed 07/16/2007 Page 3 of 3
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DONE by Order of the Idaho Public Utilities Commission at Boise
, Idaho this ~.;I.. day of May 2007.
. SMA H. SMITH. COMMISSIONER
\A~~
MACK A. REDFORD, 0 . SSIONER
ATTEST:
O:QWE-06-17 dh2
NOTICE OF CASE SCHEDULfNG
ORDER NO. 30319
.-.--....---.
Office of the Secretary
Service Date
April 12, 2007
BEFORE THE IDAHO PUBLIC UTILITIES COMMIsSION
AT&T COMMUNICATIONS OF THE
MOUNTAIN STATES, INC.
COMPLAINANT,
Attachment 2
vs.
CASE NO. QWE-T-66-17
QWEST CORPORATION
RESPONDENT.ORDER NO. 30297
On August 21~ 2006, AT&T Communications of the Mountain States filed a
complaint against Qwest CorporatioJil, alleging that Qwest entered into "secret" interconnection
agreements with Eschelon Telecom and McLeodUSA Telecommunications Services. Thecomplaint alleged a single claim of oreach of contract, stating that Qwest violated unspecified
terms of an interconnection agreement between AT&T and Qwest (the "Interconnection
Agreement") by not disclosing these "secret" agreements. Complaint at 7-
On September 6, 2006, the Commission issued a summons to Qwest to answer the
complaint. The Commission also granted the Motions for Limited Admission filed by AT&T's
out-of-state counsel. Order No. 30125. Qwest timely filed its answer to the complaint as a
Motion to Dismiss on September 27 2006. AT&T then filed a response to Qwest's Motion to
Dismiss on October 26, 2006.
On November 7, 2006, Qwest filed a Motion for Oral Argument with respect to the
issues presented in the Motion to Dismiss. AT&T filed its response joiniDg in Qwest'
s request.
The Commission granted the Motion, and set the oral argument for January 24, 2007. Order No.
30195. The Commission also dUected the parties to file briefs addressing certain issues about
which the Commission required further information. Id.
After considering the arguments presented and the information supplied in the
parties' attendant briefs , the Commission denied Qwest's Motion to Dismiss at -that time. Order
No. 30247. Instead, the Commission ordered AT&T to amend its complaint to supply moredetail with regards to its claim and ordered each party to file a brief answering the following
questions:
ORDER NO. 30297
Case 1 :07-cv-00272-MHW
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Document 8-Filed 07/16/2007 Page 2 of 3
-.-.
1. When did AT&T have notice of the "secret" agreements such that theIdaho statute of limitations would start to run?
2. Three statutes of limitations have been
proposed by the parties aspotentially applying to this matter: (1) a two-
year statute of limitationsprovided by 47 U.C. ~ 415; (2) a four-year statute of limitationsprovided by 28 U.€:. ~ 1658(a); and (3) a five-year statute of limitations
provided by Idaho Code ~ 5-216. Which statute of limitations app~es tothis matter?
Id. The parties timely filed their responses (Qwest requested and was granted a slight extension
of time to file its brief).
DISCUSSION AND FINDINGS
We direct the parties to convene a telephonic prehearing conference within
twenty-eight (28) days of the service date of this Order with the Staff Attorney assigned to this
matter for the pmposeof developing a schedule to process this case.
ORDER
IT IS HEREBY ORDERED that the parties shall convene a telephonic
prehearingconference within twenty-eight (28) days of the service date of
this Order for the purpose ofdeveloping a schedule to process this case as set forth above.
ORDER NO. 30297
ATTACHMENT 3
Case 1 :07 -cv-OO272-MHW Document 8 Filed 07/16/2007 Page 1 of 9
Attachment 3
Molly O'Leary (ISB No. 4996)
RICHARDSON & O'LEARY PLLC
515 North 27th Street
O. Box 7218
Boise, Idaho 83707
Telephone: [phone]
Fax: [phone]
Mail: molly(2V,richardsonandolearv .com
Theodore A. Livingston
Dennis G. Friedman
MAYER, BROWN, ROWE & MAW LLP
71 South Wacker Drive
Chicago, IL 60606-4637
Telephone: [phone]
Fax: [phone]
Mail: dfriedman~.mayerbrown.com
Dan Foley
General Attorney & Assistant General Counsel
AT&T WEST
P. O. Box 11010; 645 E. Plumb Lane, B132
Reno, Nevada 89520
Telephone: [phone]
Fax: [phone]
Mail: df6929!ZV.att.com
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
Ys.
AT&T COMMUNICATIONS OF THE MOUNTAIN )
STATES, INc.
Case No. 07-CV-272-mhw
Plaintiff
QWEST CORPORA nON
Defendant.
AT&T'S MOTION TO STAY PROCEEDINGS
PENDING OUTCOME OF PRIOR PROCEEDING ON
IDENTICAL CLAIM AT IDAHO PUBLIC UTILITIES COMMISSION
Case 1 :O7-cv-O0272-MHW Document 8 Filed 07/16/2007 Page 2 of 9
AT&T Communications of the Mountain States, Inc. ('~
A T &T") respectfully submits its
motion to stay this proceeding pending the outcome of a prior proceeding on the identical claim
that is currently pending before the Idaho Public Utilities Commission ("
Idaho PUC"). That case
has been underway for nearly a year and is well ahead of this one. Addressing the identical
issues and claims here would merely create a risk of inconsistency and conflict and needlessly
waste the Court's and parties ' resources. In support of this motion, AT&T states as follows:
BACKGROUND
Nearly a year ago, on August 21 , 2006, AT&T filed a complaint against Qwest
Corporation ("Qwest") at the Idaho Public Utilities Commission. Att. I hereto. That complaint
contains a single count, which alleged breach of contract by Qwest. That claim is identical to the
sole claim in AT&T's complaint here , which alleges the same breach of contract by Qwest.
Compare Cmplt. ~~ 11-12 with Att. 2 hereto (Amended Cmplt. at Idaho PUC), n 13-14.
Qwest filed a motion to dismiss AT&T's complaint in the Idaho PUC case. After
full briefing on that motion, supplemental briefmg on questions raised by the PUC, and oral
argument, the PUC denied Qwest's motion on February 16 2007. Att.3 hereto. The PUC also
directed AT&T to amend its complaint to provide more detail and ordered AT&T and Qwest to
file supplemental briefs addressing specific questions. Id.
AT&T filed its amended complaint (Att. 2) and AT&T and Qwest filed briefs
addressing the PUC's questions. On April 12, 2007, the PUC, standing by its prior denial of
Qwest's motion to dismiss , ordered the parties to develop a schedule to process the fun case.
Att. 4 hereto. The parties then did so, developing a schedule for settlement discussions
discovery, three rounds of written testimony, evidentiary hearings, and post-hearings briefs. Att.
5 hereto.
AT&T MOTION TO STAY PROCEEDING - 2
Case 1 :O7-cv-OO272-MHW Document 8 Filed 07/16/2007 Page 3 of 9
The PUC case has proceeded on that schedule, with a few agreed extensions along
the way. Settlement discussions have been held. AT&T has served a first round of discovery
and Qwest has responded. The parties have entered a protective agreement. AT&T's first round
of written testimony is now due at the end of July.
During briefmg on Qwest's motion to dismiss at the PUC, Qwest raised an issue
regarding whether the PUC has authority to grant to full reIiefrequested by AT&T.
The PUC
has not addressed that issue. Out of an abundance of caution, however, and to avoid any possible
future problems under the Idaho statute of limitations, AT&T filed a materially identical
complaint in Idaho state court on January 31 2007. This was filed purely as a protective
measure in case the Idaho PUC were ultimately to fmd it could not grant aU the relief to which
AT&T is entitled (particularly money damages). AT&T served that complaint on Qwest on May
, 2007.
AT&T asked Qwest to agree to stay the state court proceeding pending the
outcome of the ongoing case at the Idaho PUC, but Qwest refused. Instead, Qwest removed the
case to federal court and filed a motion to dismiss that is in substance nearly identical to the
motion to dismiss that the Idaho PUC already fully considered and denied.
AT&T is today filing its response to that motion to dismiss as well as its own
motion to remand. It is critical to note, however, that AT&T is making these filings only to meet
filing deadlines and avoid waiving any rights while there is not yet a stay in place, and believes
that no further action should be taken on them at this time. Rather, the Court should decide
AT&T's motion to stay before doing anything else, for if granted that will remove any present
need to review or require further briefing on the motions to dismiss and remand.
AT&T MOTION TO STAY PROCEEDING - 3
Case 1 :07 -cv-00272-MHW Document 8 Filed 07/16/2007 Page 6 of 9
Pub. Uti/. Comm '208 F.3d 475 485 (5th Cir. 2000).1 Relying on these cases, the Idaho PUC
likewise held that "state law governs this dispute." Att. 3 at 4.
13.Finally, issuing a stay in these circumstances will help prevent forum shopping.
See American Int'l Underwriters, 843 F.2d at 1259. AT&T promptly asked Qwestto agree to a
stay after AT&T served its complaint in this purely protective case. Qwest refused
, even though
proceeding on the same claim in both forums is plainly inefficient and would cause the parties to
spend money on duplicate proceedings. The only possible motivation for this refusal is that
Qwest seeks a different result on its motion to dismiss here, having already lost at the POCo
While Qwest may be willing to waste resources in hopes of getting inconsistent decisions, the
Court does not have to play along.
14.Qwest will not be prejudiced by a stay. Qwest has already had its chance to
present its motion to dismiss to a qualified decisionmaker. It also will have a complete
opportunity to present its case before the Idaho PUC and pursue any appeal, if necessary, in
court. In addition, this case concerns past events and does not affect Qwest's current business or
conduct. AT&T, by contrast, would be prejudiced by a stay, by having to expend resources on
1 The Fifth, Sixth, Seventh, Eighth, and Tenth Circuits agree. Connect Comms. Corp. v. Southwestern Beli Tel.4673d 703, 707-09 (8th Cir. 2006) (applying "Arkansas contract law" to resolve dispute over enforcement ofinterconnection agreement, because "the ultimate issue is this case - interpretation of the Interconnection Agreement
- is a state law issue
);
Michigan Bell Tel. Co. v. MCImetro Access Transmission Servs.. Inc.323 F.3d 348, 355-(6th Cir. 2003) ("a state commission s contractual interpretation ofan interconnection agreement is governed bystate, not federal, law
);
Southwestern Bell Tel. Co. v. Brooks Fiber Comms. ojOklahoma, Inc.235 F.3d 493, 498(lOth Cir. 2000) ("The (interconnection) Agreement itself and state law principles govern the questions ofinterpretation of the contract and enforcement of its provisions
);
Southwestern Bell 208 F.3d at 485; Illinois BellTel. Co. v. World Com Technologies, Inc.179 F.3d 566 574 (7th Cir. 1999) (a decision "'interpreting' an(interconnection) agreement contrary to its terms creates a different kind cfproblem
- one under the law ofcontracts, and therefore one for which a state forum can supply a remedy
). Only the Fourth Circuit has reached acontrary result, in a decision with a well-reasoned and persuasive dissent
Verizon Maryland, inc. v. Global Naps,Inc.377 F.3d 355 (4:11 Cir. 2004).
2 Notably, Qwest has never argued that the PUC lacks jurisdiction over AT&T's claim (and the Idaho Supreme
Court has held the PUC has such jurisdiction McNeal v. Idaho Pub. Utils. Comm '132 P.3d 442 446 (Idaho2006)), nor has Qwest contended that tlUs Court has exclusive jurisdiction.
AT&T MOTION TO STAY PROCEEDING - 6
Case 1 :O7-cv-00272-MHW Document 8 Filed 07/16/2007 Page 7 of 9
what everyone recognizes is a placeholder/protective case and having to defend against Qwest
taking two bites at every apple.
IS.F or these reasons, the Court should stay this case pending the final outcome of the
already pending proceeding at the Idaho PUC, and take no further action, including on AT&T's
motion to remand (which it must file soon to meet the statutory deadline, unless the court were to
stay this case immediately) or on Qwest's motion to dismiss. AT&T would be happy to provide
the Court with periodic status reports on the PUC proceeding and to notify the Court when that
proceeding is complete. In the meantime, however, any further proceedings here will only serve
to needlessly waste the resources of both the Court and the parties and pose the risk of
inconsistency, conflict, and duplication of effort between the Court and the Idaho PUC.
16.Iffor any reason the Court were not to stay the case entirely, it should at a
minimum defer any action on Qwest's motion to dismiss until it rules on AT&T's motion for
remand, which is being filed today in order to meet statutory deadlines in the absence of a
current stay. Putting first things first, the Court should not rule on Qwest s substantive motion to
dismiss until it first decides whether it even has jurisdiction.
WHEREFORE, AT&T respectfully requests that the Court stay this proceeding and take
no further action until the prior proceeding on the identical claim at the Idaho PUC is completed.
. If no stay is issued, the Court should at a minimum defer action on the motion to dismiss until
first addressing the jurisdictional issue raised in AT&T's motion to remand.
By:
AT&T MOTION TO STAY PROCEEDING - 7
Case 1 :07-cv-00272-MHW Document 8 Filed 07/16/2007 Page 8 of 9
Boise, Idaho 83707
Telephone: [phone]
Fax: [phone]
Mail: molIvrai,richardsonandolearv .com
Theodore A. Livingston
Dennis G. Friedman
MA YER, BROWN, ROWE & MAW LLP
71 South Wacker Drive
Chicago, IL 60606-4637
Telephone: [phone]
Fax: [phone]
Mail: dfi-iedmanUlj.maverbrown.com
Dan Foley
General Attorney & Assistant General Counsel
AT&T WEST
P. O. Box 11010; 645 E. Plumb Lane, BI32
Reno, Nevada 89520
Telephone: [phone]
Fax: [phone]
Mail: df6929ilV.att.com
AT&T MOTION TO STAY PROCEEDING - 8
Case 1 :07 -cv-OO272-MHW Document 8 Filed 07/16/2007 Page 9 of 9
CERTIFICATE OF SERVICE
AT&T MOTION TO STAY PROCEEDING - 9
I hereby certify that on the 16th day of July, 2007, I served a copy of the foregoing onCM/ECF Registered Participants as reflected on the Notice of Electronic Filing.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 30th day of August, 2007 a true and correct copy of thewithin and foregoing AT&T'S OPPOSITION TO QWEST'S MOTION FOR STAY was filed
with the Idaho Public Utilities Commission and parties as indicated below:
Ms. Jean Jewell
Commission Secretary
Idaho Public Utilities Commission
POBox 83720
Boise ill 83720-0074
2L Hand Delivery
- U.S. Mail, postage pre-paid
Facsimile
Electronic Mail
Mary S. Hobson
999 Main, Suite 1103
Boise, ID 83702
E-mail: marv .hobson~qwest.com
- Hand Delivery
u.S. Mail, postage pre-paid
Facsimile
Electronic Mail
Douglas RM. Nazarian
Hogan & Hartson
III South Calvert St
Baltimore MD 21202
E-mail: drmnazarian(fYhhlaw.com
- Hand Delivery
K-U.S. Mail, postage pre-paid
Facsimile
Electronic Mail
Certificate of Service - 1