20080707Joint Comments.pdf

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Theresa Montoya
Administrative Assistat
Legal
9: 36
TEL: [phone]
FAX: [phone]
Theresa.Montoya~eve13.com
July 3, 2008
VIA OVERNIGHT MAIL
Jean D. Jewell, Secreta
Idaho Public Utilties Commission
472 West Washington
Boise, ID 83702-5983
Re: Docket No. QWE-T-08-04
Dear Ms. Jewell:
Enclosed for filing with this Commission are an original and seven (7) copies of the joint
comments of Level 3 Communications, LLC and 360 Networks (USA), Inc. in response to
Qwest Corporation's Petition for Withdrawal of its Statement of Generally Available Terms and
Conditions.
If you have any questions, please contact me. Than you for your cooperation in ths matter.
Sincerely,
~~~~~'r
Administrative Assistat
Enclosure
Level 3 Communications, LLC 1025 Eldorado Boulevard Broomfield, Colorado 80021
ww.leve13.com
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE PETITION OF )
QWEST CORPORATION REQUESTING )
AUTHORIZATION TO WITHDRAW ITS )
STATEMENT OF GENERALLY AVAILABLE)
TERMS AND CONDITIONS )
)
)
CASE NO. QWE-T-08-~~L ~. 7
¡c.U. I!/Ú;NOTICE OF PETW~BN!.dt
9: 36
NOTICE OF
MODIFIED PROCEDUR
COMMENTS OF LEVEL 3 COMMUNICATIONS, LLC AND 360NETWORKS
(USA) INC.
Level 3 Communcations, LLC ("Level 3") and 360networks (USA) inc. ("Joint
CLECs") hereby submit the following comments in opposition to Qwest Corporation's
("Qwest") Petition Authorizing its Withdrawal of its Statement of Generally Available
Terms and Conditions ("SGAT") ("Petition").
I. Introduction
In its Petition, Qwest represents that it has no legal or equitable obligation to
continue to offer and maintain a curent SGAT. These arguents are flawed. No
compellng change in the law or the marketplace has occured to merit such a dramatic
shift in the Commission's established oversight process concernng Qwests SGAT,
Qwest Pedormance Assurance Plan ("QP AP"), and Pedormance Indicator Definitions
("PIDs") at this time. A continued effort to advance the benefits of an effective
competitive telecommuncations marketplace requires the maintenance and availabilty of
a curent SGAT and effective service quality standards in Idaho.
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II. The SGAT Remains an Important Baseline Offering for
Interconnecting CLECs
A principle point of Qwest s advocacy in Idaho and elsewhere in its foureen
state territory has been to reduce or eliminate the role of regulators in overseeing its
wholesale business operations with an eye toward allowing Qwest to operate in a "more
commercial" environment. The primar thst of Qwests efforts to avoid continued
maintenance of a curent wholesale taff or SGAT in other states has been that the law
does not require the maintenance of a wholesale tariff. Therefore, Qwest often argues
that it may unilaterally withdraw its SGA T at any time without Commssion approval. In
advancing these arguents however, Qwest tyically cites no authority in support of this
position but instead simply relies on overly broad claims that competitive market forces
are such that they should be allowed to provide themselves with such relief. Other states
that have considered Qwests request have correctly found that the maintenance of the
SGAT remains an important baseline offering for interconnecting CLECs. i
Section 252(t) of The Federal Telecommunications Act (the "Act,,)2 allows Qwest
to satisfy its obligations under Section 251 and accompanying reguations by filing a
SGA T setting forth terms and conditions offered to competitors within the state. Once
i See In the Matter 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 Rates, Terms and
Conditions of Interconnection with Qwest Corporation, Docket No. D2005.12.174, Order
No. 6715a, Order Granting Motion to Withdraw Petition for Arbitration and to Opt into
Qwest's "SGAT" (Mt. PSC August 1, 2007)("Montaa SGAT Order"); In the Matter of
the Petition ofQwest Corporationfor a Variance from the Requirement to Maintain a
Tariffor the Resale and Wholesale Services it Provides to Other Telecommunications
Carriers, Pursuant to 4 CCR 723-2-2502(C)(V, 2504(1), 2506(A) Through (D)(I) and (E)
and 2585(A); Docket No. 07V -171 T; Decision No. C07-1095 (Co. PUC Nov. 28, 2007)
("Colorado SGAT Order").
247 U.S.C. Section 151 et seq.
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Qwest chooses to offer a SGAT, as it has in Idaho, and the Commission has adopted and
relied upon it, the Commission is entitled to require Qwest to continue to offer an updated
SGAT, with all of its attendant benefits for competition.
III. This Commission Relied on Qwest's SGAT As A Key Component in
Its Section 271/272 Review and Relief Recommendation
During Qwests Section 271 approval process in Idaho, the Commission and the
Federal Communications Commission ("FCC") expressly reviewed and relied upon
Qwests SGAT and its offerings therein in recommending approval of Qwests
application.3 Given the significant financial and competitive gains by Qwest since it
received Section 271 relief, it should not, having now received those benefits, back away
from the commitments it previously made to this Commission and Qwests competitors.
Even though an approved SGAT was not an absolute legal requirement to gaining
Section 271 relief, once Qwest offered to make it available and it has been relied upon,
Qwest should not be allowed to unlaterally withdraw it. At the very least, such a
proposed action must be subject to a full and fair review by the Commission and affected
paries.
IV. Commission Oversight Remains Critical
3 See In the Matter of the Application by Qwest Communications Int'l, Inc. for
Authorization to Provide In-Region, InterLATA Services in the States of Colorado, Idaho,
Iowa, Montana, Nebraska, North Dakota, Utah, Idaho and Wyoming, Before the Federal
Communications Commission, WC Docket No. 02-314, Memorandum Opinion and
Order (December 23, 2002).
3
In its Petition, Qwest represents that it has not offered its SGAT as an option for
interconnection agreements since August 2004. It asserts that its SGAT is superfuous
and has become outdated and has not been used as a template for some time.
Whle it may be tre that Qwest discontinued the offering of its SGAT to CLECs
as an interconnection agreement option in 2004, this was Qwests unilateral decision and
it was a decision not favored by CLECs. It introduced a level of uncertinty to the
negotiations process that was not present with the SGAT and for some, delayed entry into
the local marketplace in Idaho.
The SGAT enhances and eases competition. The benefits realized from
Commission oversight that ensures compliance with Federal Act and state law are
significant. Having a standard, Commission-approved SGA T which eliminates
significant transaction costs that are incured in negotiating and potentially arbitrating an
ICA with Qwest is critical to competitors both small and large. These benefits would not
exist under a regime that only allowed for either a "commercial template agreement" or
adoption of another carier's negotiated interconnection agreement. Once Qwest decided
to offer its SGAT and at least parially rely upon it for Section 271 relief, the
Commission gained the authority to require Qwest to continue to maintan an updated
SGAr available for opt-in in Idaho to fuher the goals of competition in the
telecommuncations market.
Qwest argues that a SGAT is not necessar any longer because CLECs can
simply opt into other cariers' interconnection agreements ("ICAs") ifthey want a more
expedient way to establish interconnection than negotiation and arbitration. Such an
argument fails to acknowledge the unque business needs of different CLECs, however.
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If Qwest were allowed to avoid Commission review and approval of its wholesale
offerings, Qwest would be free to change terms and conditions as it sees fit, and leave
CLECs that may not desire the terms of another carer's ICA with a "take it or leave it"
choice. Qwests wholesale offerings that are made available and subject to the SGAT
and attendant Commission oversight promote competition and ultimately save resources
of all interested parties, including the Commission. Qwest continues to control
bottleneck interconnection facilities and it must not be allowed to exert a stranglehold
over smaller competitors that do not always have the resources to arbitrate an ICA with
Qwest when they seek to offer competitive services.
Competitive carers should continue to have the abilty to paricipate in the
effort to maintain a curent and valid SGAT. Industry participation in the Commission
process ensures the SGA T is not only available to all competitors but that it has
undergone an acceptable measure of regulatory scrutiny. A "commercial template"
drafed and controlled by Qwest would not provide the same baseline staing point to
ICA negotiations than a SGAT does nor could CLECs confidently rely upon a document
that is under the unfettered control of Qwest for opt-in puroses. Discontinuing the
practice of maintaining a curent SGAT would have the undesirable consequence of
handicapping CLECs during ICA negotiations and increasing the likelihood and scale of
ICA arbitrations.
Qwests request to discontinue the QPAP and the PIDs altogether in Idaho is
paricularly troubling. These performance stadards were established to attempt to
control the "backsliding" of Qwests wholesale service quality once it entered the long
distace market by receiving Section 271 approval. Anti-backsliding mechansms were
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considered integral to the developing competitive telecommunications marketplace as a
result of the Bell Operating Companies' natual inclination to maintan leadership in
market share. The QPAP and the PIDs can be credited for the improved and consistent
wholesale service quality provided by Qwest to its competitors. Rather than to justify
their discontinuace, the effectiveness of the QP AP and the PIDs should justify their
continuance.
v. Conclusion
In considering Qwests Petition, the Joint CLECs emphasize the value of
maintaining Commission oversight of Qwest's wholesale offerings to competitive
cariers in Idaho. Allowing Qwest to eliminate its SGAT would position it to be able to
exercise unchecked leverage on competitive carers that rely on fair, non-discriminatory
access to ILEC interconnection for their services. Having offered and relied on the
SGAT as a component of its Section 271 relief, Qwest should not be allowed to renege
on its obligation to maintan a publicly available, Commission-approved set of wholesale
terms and conditions that CLECs may opt into or rely upon as a staing point in their
effort to obtain fair and non-discriminatory interconnection that supports their unique
business needs.
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Respectfully submitted this 3rd day of July, 2008,
Michel Singer Nelson
Associate General Counsel
360networks (USA) inc.
867 Coal Creek Circle, Suite 160
Louisvile, CO 80027
(P) 3038545513
(t) 303 8545100
e-mail: mnelsonti360.net
Attorney for 360networks (USA) inc.
cc: Mar S. Hobson, Esq.
Adam L. Sherr, Esq., Qwest
By:
Gregory . ogers
Senior Corporate Counsel
Level 3 Communications LLC
i 025 Eldorado Boulevard
Broomfield, CO 80021
(P): [phone]
(t): [phone]
e-mail: greg.rogers~leve13.com
Attorney for Level 3 Communcations, LLC
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CERTIFICATE OF SERVICE
I do hereby certify that a tre and correct copy ofthe foregoing PEITION OF LEVEL 3
COMMUICATIONS was served on the 3rd day of July 2008 on the following
individuals:
Jean D. Jewell
Idaho Public Utilties Commission
472 West Washington Street
P. O. Box 83720
Boise,ID 83702
Telephone [phone]
Facsimile: [phone]
j jewelltipuc. state.id. us
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