20090526Denney Direct.pdf

riegra-
TELECOM
May 22,2009
Via email and Overnight Delivery
Jean D. Jewell, Secretar
Idaho Public Utilities Commission
472 West Washington
Boise,ID 83702-5983
RE: Docket No. QWE-T-08-07
Dear Ms. Jewell:
F~~ t: J;'~: l;- ¡
Integra Telecom
6160 Golden Hills Drive
Golden Valley, MN 55416
ww.integratelecom.com
HAY 26 M'i 9: 35
Enclosed for fiing are nine copies of the Direct Testimony of Douglas Denney onBehalf of Intervenors Integra and 360networks, Joint CLECs in connection with the
above-referenced matter. The highly confidential Exhibits 206 and 207 are included
separately and will be provided directly to Qwest, consistent with the Protective
Agreement.
Enclosures
cc: See Attached Certificate of Service
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
c¡ /'~"f -l,\J
IN THE MATTER OF QWEST) Zflû9 Min 26 ÂÎi 9: 35CORPORATION'S PETITION FOR ) lDßJiC
APPROVAL OF NON-IMPAIRED ) CASE NO. QWE-T-08~.111LnT:S
WIRE CENTER LISTS PURSUANT TO )
THE TRIENNIAL REVIEW REMAND )ORDER )
CERTIFICATE OF SERVICE
I hereby certify that nine tre and correct copies of the foregoing Direct
Testimony of Douglas Denney on Behalf of Intervenors Integra and 360networks, Joint
CLECs was filed on May 22, 2009, with:
VIA EMAIL AND OVERNIGHT MAIL:
Jean D. Jewell
Idaho PUC
472 West Washington Street
Boise,ID 83702
Telephone: [phone]
Fax: [phone]
and served on May 22, 2009 upon the individuals listed below. Highly Confidential
information is being served on any Qwest individual(s) that have signed the relevant
protective agreement signatue page.
VIA EMAIL AND/OR OVERNIGHT MAIL:
Mary S. Hobson
999 Main, Suite 1103
Boise,ID 83702
Telephone: [phone]
Mar.hobsonCÐqwest.com
Adam L. Sherr
Corporate Counsel
Qwest Corporation
1600 ih Avenue, Room 3206
Seattle, WA 98191
Adam. sherrCÐg we st. com
Michel Singer-Nelson
Associate General Counsel
360networks
867 Coal Creek Circle, Suite 160
Louisvile, CO 80027
mnelsonCÐ3 60 .net
Weldon Stutzman
Deputy Attorney General
Idaho Public Utilities Commission
472 West Washington
P.O. Box 83720
Boise, ID 83720-0074
Weldon.stutzmanCÐpuc.idaho.gov
Alex Duare
Alex. DuarteßYgwest.com
Dated: May 22, 2009
2
Douglas Denney
Integra Telecom
6160 Golden Hills Drive
Golden Valley, MN 55416
dkdenneyCÐintegratelecom.com
Direct: 763-745-8462
Fax: [phone]
F':C'i
"'nnoyii'! ?!"lUUJ ni- ¡ 1_0 ì1f1 9: 36
Michel Singer-Nelson
Associate General Counsel
360networks
867 Coal Creek Circle, Suite 160
Louisvile, CO 80027
mnelson(i360.net
Direct: 303-854-5513
Representatives for Joint CLECs, Intervenors
BEFORE THE IDAHO PUBLIC UTILITIES COMMSSION
IN THE MATTER OF QWEST )
CORPORATION'S PETITION FOR )
APPROVAL OF NON-IMPAIRED ) CASE NO. QWE-T -08-07
WI CENTER LISTS PURUANT TO )
THE TRINNIÁ REVIW REMAD )ORDER )
INTERVENOR PREFILE TESTIMONY
DIRECT TESTIMONY
OF
DOUGLAS DENNY
ON BEHAF OF
INTEGRA AND 360networks (USA) inc. ("JOINT CLECS")
May 22, 2009
Case No. QWE-T-08-07
May 22, 2009
TABLE OF CONTENTS
i. INTRODUCTION ...................................................................................................1
ORGANIZATION OF TESTIMONY...............................................................3
SUMMAY OF TESTIMONy.........................................................................5
ISSUES TO BE ADDRESSED .........................................................................5
II. THE FIVE-STATE SETTLEMENT AGREEMENT CANNOT BE
USED AS PRECEDENT IN THIS DOCKET...................................................9
FIVE-STATE SETTLEMENT AGREEMENT.....................................................9
QWEST'S REQUEST IN THIS CASE IS PROHIBITED BY THE
FIVE-STATE SETTLEMENT AGREEMENT................................................... 14
COMMISSION DOES NOT NEED TO DECIDE ISSUES RAISED
IN THE FIVE-STATE SETTLEMENT AGREEMENT..................................... 19
III. SWITCHED BUSINESS LINES...........................................................................22
DEFINITION OF BUSINESS LINES.............................................................22
RESIDENTIAL LOOPS SHOULD NOT BE COUNTED IN THE
SWITCHED BUSINESS LINE COUNTS .............. ..... ............................. ......24
NON-SWITCHED CAPACITY OF LOOPS USED TO SERVE
BUSINESSES SHOULD NOT BE INCLUDED IN SWITCHED
BUSINESS LINE COUNTS............................................................................26
Table 1: Highy Confidential- Integra Estimate of Switched
Business Lines as a Percent of Loop Capacity. .............................................. 33
INTEGRA CAN NOT VERIFY QWEST'S LOOP COUNTS IN
BOISE MAIN AND BOISE WEST ................................................................33
Table 2: Percent of Qwest' s Integra Loop Counts Validated by
Integra.............................................................................................................35
LINE COUNT DATA SHOULD BE REFLECTIVE OF TIME
PERIOD OF THE REQUEST FOR NON-IMPAIRED WIRE
CENTER DESIGNATION .............................................................................36
ADJUSTED QWEST LINE COUNTS ...........................................................38
Case No. QWE-T-08-07
May 22, 2009
Table 3: Highly Confidential -- 2007 and 2008 Qwest Line Counts
with Adjustments ............................................................................................ 39
A NON-IMPAIRMENT FINDING IS NOT REVERSIBLE..........................39
IV. FIBER BASED COLLOCATIONS ......................................................................40
IMPACT OF QWEST'S FIBER-BASED COLLOCATION
SUPPORT DATA............................................................................................40
CONCERNS REGARDING QWEST'S PROCESS FOR
IDENTIFYING FIBER-BASED COLLOCATIONS .....................................42
V. TRANSITION PERIOD ........................................................................................47
90 DAY TRASITION PERIOD TO CONVERT FROM UNS TO
AN ALTERNATIVE FACILITY IS NOT SUFFICIENT ..............................47
MINIMUM SIX MONTH TRANSITION PERIOD IS
RECOMMENDED ..........................................................................................50
VI. UNE CONVERSIONS ..........................................................................................50
UNE CONVERSION DEFIND ....................................................................50
UNE CONVERSION PROPOSALS......... .... ....... ........ ..... ........ .............. ........51
UNE CONVERSIONS ARE WITHIN THIS COMMISSION'S
JURISDICTION ..............................................................................................53
CONVERSIONS SHOULD NOT IMPACT END USER
CUSTOMERS..................................................................................................55
IT IS UNECESSARY TO CHAGE A CIRCUIT ID FOR
PURPOSES OF A UNE CONVERSION ........................................................58
QWEST SHOULD NOT CHARGE CLECS TO CONVERT UNES
TO HIGHER PRICED ALTERNATIVE FACILITIES SOLD BY
QWEST............................................................................................................62
QWEST'S DESIGN CHANGE CHARGE IS INAPPROPRITE FOR
UNE CONVERSIONS ....................................................................................65
SEAMLESS CONVERSIONS CAN BE ACCOMPLISHED
THROUGH A SIMPLE BILLING CHAGE ................................................67
OTHER STATES HAVE FOUND A CHARGE FOR UNE
CONVERSIONS IS INAPPROPRIATE.........................................................70
VII. PROCESS GOING FORWAR ...........................................................................71
Case No. QWE-T-08-07
May 22, 2009
QWEST SHOULD PROVIDE NOTICE OF WIRE CENTERS
NEARG THE FCC'S NON-IMPAIRMENT THRESHOLD......................74
BEFORE A REQUEST FOR A NON-IMPAIRMENT
DESIGNATION, QWEST SHOULD NOTIFY CLECS OF ITS
INTENT TO REL Y UPON BOTH THE CLECS FIBER-BASED
COLLOCATION AND THE CLECS BUSINSS LINE COUNTS ..............77
VII. CONCLUSION......................................................................................................79
Case No. QWE- T -08-07
May 22, 2009
1 I.INRODUCTION
2 Q.PLEASE STATE YOUR NAM AN BUSINESS ADDRESS.
3 A.My name is Douglas Denney. I work at 6160 Golden Hils Drive, Golden
4 Valley, Minnesota.
5 Q.BY WHOM AR YOU EMPLOYED AN IN WHT CAPACITY?
6 A.I am employed by Integra Telecom, Inc., as Integra's Director of Costs and
7 Policy. My job duties include negotiating interconnection agreements,
8 monitoring, reviewing and analyzg the wholesale costs Integra or its
9 subsidiares pay to carers such as Qwest, and representing Integra and its
10 affliates on reguatory issues.
11 Integra Telecom, Inc. completed its purchase of Electrc Lightwave, LLC
12 ("ELI"), the afliate doing business in Idaho, on August 1, 2006. For
13 convenience, I will generally refer to Integra and its afliates, includig ELI,
14 as Integra. However, when describing certn dockets and actions of specific
15 Integra afliates prior to their afiation with Integra, I will refer to
specifically to the affliate.
116
17 Q.PLEASE DESCRIBE YOUR EDUCATION AND PROFESSIONAL
18 BACKGROUN.
19 A.I received a B.S. degree in Business Management from Phillps University in
20 1988. I spent thee years doing graduate work at the University of Arzona in
For example, as discussed below, I was employed by Eschelon Telecom, Inc. when it was
purchased by Integr on August 31, 2007. While with Eschelon I was involved in TRRO
proceedings in many states.
Direct Testimony of Douglas Denney Page 1
Denney,Di
Joint CLECs, Intervemors
Case No. QWE- T -08-07
May 22, 2009
1 Economics, and then I tranferred to Oregon State University where I have
2 completed all the requirements for a Ph.D. except my disserttion. My field
3 of study was Industral Organzation, and I focused on cost models and the
4 measurement of market power. I taught a varety of economics courses at the
5 University of Arzona and Oregon State University. I was hied by AT&T in
6 December 1996 and spent most of my time with AT&T analyzng cost
7 models. In December 2004, I was hired by Eschelon Telecom, Inc., which
8 was subsequently purchased by Integra Telecom, where I am presently
9 employed.
10 I have parcipated in over 40 proceedings in the 14-state Qwest region. Much
11 of my prior testiony involved cost models - including the HAl Model,
12 BCPM, GTE's ICM, U S WEST's UN cost models, and the FCC's Synthesis
13 ModeL. I have also testified about issues relating to the wholesale cost of local
14 servce - including unversal service fuding, unbundled network element
15 pricing, geographic deaveraging, and competitive local exchange carier
16 access rates. I have filed testimony regarding Qwests "non-impaied" wire
17 center lists and related issues, including the Five-State Settlement Agreement,2
18 in dockets in Uta Oregon, Colorado, Minesota and Arzona.
19 Q.HAVE YOU PREVIOUSLY TESTIFIED IN IDAHO?
2 The Multi-State Setement Agreement Regarding Wire Center Designtions and Related Issues
("Settlement Agreement"), is attched to Ms. Albersheim's testiony as Exhbit Qwest-4, and
is heavily and improperly relied upon by Qwest witnesses as their dict evidence in this case.
Ths agreement wil be discussed in more detal in Section II, and referenced thoughout this
testimony.
Direct Testiony of Douglas Denney Page 2
Denney,Di
Joint CLECs, Intervernors
Case No. QWE-T-08-07
May 22, 2009
1 A.Yes. Whle workig for AT&T, I filed testimony and parcipated in
2 workshops in dockets GNR-T-97-22 / GNR-T-00-2 regardig unversal
3 servce. More recently, whie workig for Integra, I fied comments in QWE-
4 08-04 regarding Qwest s SGAT and performance assurce plan.
5 Q.PLEASE DESCRIE INTEGRA'S PRESENCE IN IDAHO.
6 A.In Idaho, Integra serves alost 2,000 customers with nearly 40,000 access
7 lines using a combintion of its own facilties and network elements leased
8 from Qwest. Integra's investment in facilties includes buildig collocations
9 in 4 Qwest central offces. Integr accesses its end user customers via "last
10 mile" facilties or Unbundled Network Element ("UN") loops purchased
11 from Qwest and connects these customers to its DMS500 switch in Idao.
12 Integra serves the Boise Metropolita area includig Boise, Meridian Nampa,
13 Caldwell, Eagle, Kuna, Middleton and Sta. In addition, Integra also supplies
14 services outside of the Treasure Valley, reachig to Mountan Home, Twi
15 Falls, Pocatello, Idaho Falls and nort to Coeur d Alene. Curently Integra
16 employs nearly 40 people in the state.
17 ORGANIZATION OF TESTIMONY
18 Q.PLEASE DESCRIE HOW YOUR TESTIMONY IS ORGANZED.
19 A.My testimony is organed into eight sections. Section I introduces the
20 testimony. Section II discusses the Five-State Settlement Agreement and
21 explais the history of the Five-State Settlement Agreement, how the
22 negotiated term of the agreement prohibit its use as evidence with regard to
23 cert issues in ths docket, and how the passage of time, including CLEC
Direct Testimony of Douglas Denney Page 3
Denney,Di
Joint CLECs, Intervernors
1
Case No. QWE- T -08-07
May 22, 2009
experience in multiple TRR03 dockets in multiple states has provided ideas
2 tht will allow ths Commssion to improve upon the issues raised in the Five-
3 State Settlement Agreement for Idaho. Section III explains the flaws in
4 Qwest's switched business line counts, specifically how Qwest includes
5 residential and non-switched lines when counting Competitive Local
6 Exchange Carer ("CLEC") switched business lines. In addition, ths section
7 will discuss the difficulties in validating Qwest s switched business lines.
8 Section IV discusses fiber-based collocations and describes problems Qwest
9 has ha in other states properly countig fiber-based collocators. Ths section
10 will also discuss the diffculties in validating Qwest s fiber-based collocation
11 data. Section V explais the appropriate transition period for moving away
12 from UNs when UNs are no longer available. Ths section will explain
13 why the transition period in the TRRO Five-State Settlement Agreement is too
14 short and why a transition period of one-year, as outlined in the TRRO, would
15 be more appropriate. Section VI discusses why this Commssion has
16 jursdiction over the transition from UNEs to Qwest alternative servces. In
17 addition, ths section explais why ths conversion is simply a biling change
18 and thus there is no need to change circuit IDs or charge for these
19 conversions. Section VII explais improvements to Qwest s proposal
20 regarding the most effcient process going forward, for instaces where Qwest
3 TRO refers to the FCC's Triennal Review Remand Order. (i.e. In the Matter of Unbundled
Access to Network Elements, WC Docket No. 04-313; Review of the Section 251 Unbundling
Obligations of Incumbent Local Exchange Carriers, CC Docket No. 01-338; Order on Remand,
FCC 04-290, Febru 4,2005.
Direct Testiony of Douglas Denney Page 4
Denney,Di
Joint CLECs, Intervemors
Case No. QWE-T-08-07
May 22, 2009
1 seeks to expand the list of wie centers. Finaly, section VIII concludes the
2 testimony and sumard my recommendations.
3 SUMMY OF TESTIMONY
4 Q.AR THRE AN EXHITS TO YOUR TESTIMONY?
5 A.Yes. The exhbits to my testiony are described below:
6 EXHIT 201: Excerpts from the hearng transcript in Colorado regardig the Five-State
7 Settlement Agreement
8 EXHBIT 202: Decisions of the Colorado Commssion regarding TRRO Non-Impaired
9 Wire Center Issues and the Five-State Settlement Agreement
10 EXHBIT 203: Qwest Data Responses to Joint CLECs in Arzona TRO Wire Center
11 Docket regardig fiber-based collocations.
12 EXHBIT 204: Washigton Commssion Order in Qwestlschelon Arbitration regarding
13 Commingling.
14 EXHBIT 205: Minnesota Commission Order Regarding Jursdiction over Conversions
15 EXHBIT 206: Highy Confdential- Integra Estimate of Switched Business Lines as a
16 Percent of Loop Capacity
17 EXHIT 207: Highy Confdential -- 2007 and 2008 Qwest Line Counts with
18 Adjustments
19 ISSUES TO BE ADDRESSED
20 Q.WHT ISSUES DOES TIDS COMMSSION NEED TO ADDRESS IN
21 TIDSDOCKET?
22 A.Ths Commssion need only decide whether Qwest has properly supported the
23 classification of the Boise Main and Boise West wie centers. Qwest has
24 requeste tht Boise Mai be classified as Tier 14 and tht Boise West be
4 Albersheim Direc p. 33, lies 5-6.
Direct Testimony of Douglas Denney PageS
Denney,Di
Joint CLECs, Intervemors
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Case No. QWE-T-08-07
May 22, 2009
classified is Tier 2.5 In addition, Qwest has requested that DS3 loops be
classified as non-impaied in the Boise Mai wie center.6
A wie center is classified as Tier 1 if it has either 4 or more fiber-based
collocations or at least 38,000 switched business lines. DSI UN transport is
considered non-impaired between Tier 1 wire centers.7 In other words, Qwest
no longer has to offer DS 1 tranport at UN rates when both offces at the end
of the transport route are classified as Tier 1.
A wie center is classified as Tier 2 when it ha either 3 or more fiber-based
collocations or at least 24,000 switched business lines. DS3 UN transport
and dak fiber tranport is considered non-impaired between offces classified
as either Tier 1 or Tier 2.8 In addition, there is a limt of 10 DS 1 UNE
transport routes in offces where DS3 trsport is considered non-impaired.9
For example, if Qwest were to prevail on its request to classify Boise Mai as
Tier 1 and Boise West as Tier 2, CLECs would no longer be able to purchase
DS3 UN tranport or dak fiber between these two wire centers and would
be limted to 10 DS 1 UNE transport circuits.
5
6
7
8
9
Albersheim Direct p. 33, lies 6-7.
A1bersheim Direct, p. 31, lines 11-13.
TRRO, Executive Sumar, , 5, p. 4 and' 126.
TRRO, Executive Sumar, , 5, p. 4 and" 129 & 133.
TRRO,' 128.
Direct Testimony of Douglas Denney Page 6
Denney,Di
Joint CLECs, Intervemors
Case No. QWE-T-08-07
May 22, 2009
1 A wie center is considered non-impaired with respect to DS3 UN loops if it
2 ha 4 or more fiber-based collocations and at least 38,000 switched business
3 lines.
10
4 Q.PLEASE SUMMZE YOUR TESTIMONY.
5 A.Based on review of the supportg information provided by Qwest, the Joint
CLECs curently do not dispute11 that Boise Mai and Boise West have the6
7 minium number of fiber-based collocators to be classifed as Tier 1 and Tier
8 2 respectively. The only remaing non-impaied designtion in dispute is
9 DS3 Loop non-impairment in Boise Mai.
10 DS3 loop non-impairment designtion is dependent upon switched business
11 line counts in tht wire center. Qwest has improperly counted switched
12 business lines. First, because Qwest did not make its request for DS3 non-
13 impaient until its April 17,2009 testimony, Qwest should have relied upon
14 end of year 2008 switched business line counts rather than end of year 2007.
15 Second, Qwest improperly counts CLEC loops by includig residential loops
16 and non-switched capacity (both used and unused) in its CLEC switched
17 business line counts. Thd, Integra is unable to verify Qwest s Integra
18 specific switched business line counts and as of the date ths testimony is
19 filed, signficant discrepancies exist between Integra's data and the data
20 Qwest provided.
10
11
TRRO, Executive Sumar, ,r 5, p. 5 and'r 174.
The Joint CLECs may update their position based on the testiony of other pares in ths
docket.
Direct Testimony of Douglas Denney Page 7
Deney,Di
Joint CLECs, Intervemors
Case No. QWE- T -08-07
May 22, 2009
1 The Commssion should reject Qwest's request to classify the Boise Mai
2 wie center as non-impaied for DS3 loops.
3 No fuer action is requied in this docket at this time. If, however, the
4 Commission intends to address the issues improperly raised by Qwest though
5 the use of the Five-State Settlement Agreement, then the Commssion should
6 determine that the transition period of converting from UNs to alternative
7 servces should be no less th six month. In addition, as UN conversions
8 to Qwest alternative facilties is nothng more th a biling chage, Qwest
9 should not change the circuit identification for the converted circuit and
10 Qwest should not bil CLECs a non-recurg chage for a chage tht is
11 pedormed for Qwest s benefit (i.e. higher recurng rates).
12 Because Qwest is reviewig its own data on at least an anua basis to
13 determne whether additional wire centers meet the FCC's non-impairment
14 thesholds, Qwest should provide information to CLECs regarding wie
15 centers that are near a non-impaied theshold. Qwest should notify CLECs
16 anually of all wie centers with 5,000 business lines of 24,000, 38,000 or
17 60,000 switched business lines. In addition, Qwest should notify CLECs of
18 wie centers when they are withn one fiber-based collocation of reachig Tier
19 2 statu. By providing ths inormation, both Qwest and CLECs will have
20 access to similar maket inormation regarding the potential for futue non-
21 impaient determnations and CLECs will be able to tae ths inormation
22 into account when formulating their business plans, as Qwest can do today.
Direct Testiony of Douglas Denney Page 8
Denney,Di
Joint CLECs, Intervemors
Case No. QWE- T -08-07
May 22, 2009
1 Qwest has historically provided CLECs with notice and the opportty to
3
dispute, when Qwest plans to request a change to a wie center non-
impairment designation based upon a CLEC has a fiber-based collocation.
12
2
4 The Joint CLECs propose steps to be included in Qwests process to ensure
5 that the notice and opportty to dispute serves its purose. Firt, Qwest
6 should ensure that the proper individuas at a CLEC are inormed of Qwest's
7 reliance on the CLEC's collocation. This can be done by sending the notice to
8 at least those persons identified by a CLEC to receive interconnection
9 agreement notices. Second, Qwest should not only inform CLECs of its
10 reliance upon their collocation but also when it intends to rely upon CLEC
11 switched business lines as par of a request for a change in non-impaient
12 designation. In so doing, Qwest should include the specific line counts on
13 which it relies. This will help ensure tht CLECs are informed of Qwest s
14 reliance on their data and increase the likelihood tht a CLEC will have the
15 opportty to review and validate its own data upon which Qwest relies.
16 II.
17
THE FI-STATE SETTLEMENT A GREEMENT CANOT BE USED
AS PRECEDENT IN THIS DOCKET
18 FIV-STATE SETTLEMENT AGREEMENT
19 Q.QWEST'S TESTIMONY MAS NUMROUS REFERENCES TO
20 THE FI-STATE TRRO NON-IMPAID WIRE CENTER
21 SETTLEMENT AGREEMENT ("FIV-STATE SETTLEMENT
12
Though this is a ter of the Five-State Settlement Agreement, Qwest provided this notice with its
intial non-impaid wie center lists in 2005, before the agreement. In addition, Qwest provided
notice as par of ths case in Idao (see Torrence Direct, p. 16, lines 6-11).
Direct Testimony of Douglas Denney Page 9
Denney,Di
Joint CLECs, Intervemors
Case No. QWE-T-08-07
May 22, 2009
1 AGREEMENT,,).13 PLEASE BRIFLY DESCRIE TffS
2 SETTLEMENT.
3 A.Ths Five-State Settlement Agreement was reached between Qwest and a
4 group of CLECS14 for six states and was approved by the corresponding state
5 commissions in five of them (Arzona, Minesota Oregon, Utah and
6 Washington), with the Colorado Commssion not approving the proposed
7 settlement agreement as filed. Qwest submits the Five-State Settlement
8 Agreement with its Petition as evidence (marked as Exhbit Qwest-4), even
9 though it expressly provides that it may not be used as evidence (as discussed
10 below).
15 Without waiving any objections and to faciltate discussion of the
11 problems with Qwest's testimony about the Five-State agreement, I describe
12 here that it is broken into seven sections as follows:
13 Section i. Introduction - Ths section establishes the context for the agreement. The
14 agreement stemmed from simultaeous TRRO cases in six sttes (Arzona
15 Colorado, Oregon, Uta and Washigton) tht began in the beging of 2006.
16 Section II. Defintions - Ths section provides definitions for the terms used thoughout
17 the agreement.
18 Section III. Intial Commssion-Approved Wire Center List - Ths section deals with
19 Qwest's Intiallist of non-impaired wie centers and their effective dates. The
20 initial list was based upon Qwest's Febru 4, 2005 filing at the FCC.16
21 Section IV. Non-recurg Charge for Conversions using the Initial Wire Center List and
22 for Futue Commssion-Approved Additions to tht List - ths section
13
15
16
See Albersheim Direct pp. 3, 13, 18 - 29,31-38 and Exhibit Qwest-4 (a copy of the Agreement);
Torrence Direct pp. 19,20 and 27; and Hunicutt Dirct, pp. 9 and 21.
This group included Covad, Eschelon, Integra, McLeodUSA, Onvoy, POPP, TDS Metrocom
and XO Communications.
Settlement Agreement, Exhibit Qwest-4, p. 16.
Ms. Albersheim references ths :fling and atches the cover letter for the :fling as Exhbit
Qwest-4.
14
Direct Testimony ofDouglas Denney Page 10
Denney,Di
Joint CLECs, Interemors
Case No. QWE-T-08-07
May 22, 2009
1 establishes a charge for converting from UN to an alterntive servce or
2 product offered by Qwest.
3 Section V. Methodology - Ths section is broken into two pars and describes the
4 settlement methodology used for futue additions to the non-impaied wire
5 centers. The first par deals with the settlement methodology for counting
6 switched business lines and the second par deals with the methodology for
7 countig fiber-based collocations.
8 Section VI. Futue Qwest Filings to Request Commssion Approval of Non-Impairent
9 Designations and Additions to the Commission-Approved Wire Center List -
10 Ths section of the agreement describes when Qwest can make futue fiings
11 for non-impaied wie centers, the methodology that Qwest should use,
12 process for requestig a protective order, advance notice to CLECs, the data
13 that should be provided, time frames for objecting to Qwests request,
14 proposed time frames to resolve disputes, lengt of the tranition period to
15 move from UNs to alternative products or services and the rate to apply
16 durg the transition period.
17 Section VII. Other Provisions - Ths section describes how the agreement relates to
18 carers' interconnection agreements, and processes for the settling pares to
19 implement changes to their interconnection agreements. The section also
20 specifies that Qwest will make these provisions available to other CLECs,
21 though it does not provide tht other CLECs are bound by these provisions.
22 Ths section also clarfies tht the settlement is a settement of controversy and
23 may not be used as evidence in futue proceedings. Finally, ths section
24 contans some conditions related to conversions of UNs tht occured based
25 upon Qwest's original proposed non-impaied wie center list, but tht would
26 not have been necessar under the non-impaied wie center list contaied as
27 par of the settlement agreement.
28 Q.WHT WAS YOUR INOLVEMENT WIH THE FIV-STATE
29 SETTLEMENT AGREEMENT?
30 A.Durg the intial TRO wire center dockets that commenced shorty afer the
31 Triennal Review Remand Order ("TRRO"), I testified on behalf of a number
32 of CLECS17 regarding Qwest's intial wie center list and issues perg to
33 "non-impaient" classifications. Qwest's initial request involved 76 wie
17 36Onetworks was not a par to the Settlement Agreement.
Direct Testiony ofDouglas Denney Page 11
Deney,Di
Joint CLECs, Intervemors
1
Case No. QWE- T -08-07
May 22, 2009
centers.18 Durg the course of these intial proceedings, Qwest and the
2 CLECs actively involved in those proceedigs began discussions in an attempt
3 to resolve disputed issues. I was the lead negotiator for the CLECs and was
4 involved in all aspects of the Five-State Settlement Agreement. Two of the
5 original six states, Arzona and Colorado, held heargs on the Five-State
6 Settlement Agreement. In those heargs, I was the witness for the CLECs
7 that signed the agreement.
8 Q.CAN THE FIV-STATE SETTLEMENT AGREEMENT BE USED AS
9 EVIDENCE REGARDING DISPUTED ISSUES IN TIDS
10 PROCEEDING?
11 A.No, while the Five-State Settlement Agreement is a publicly fied document,
12 section VI.B restrcts its use.
22
Ths Settlement Agreement is a settlement of a controversy. No
precedent is established by ths Settlement Agreement, whether or not
approved by Commssions. The Settlement Agreement is made only
for settlement puroses and does not represent the position that any
Par would tae if ths matter is not resolved by agreement. Ths
Settement Agreement may not be used as evidence or for
impeachment in any futue proceeding before a Commssion or any
other adinstrative or judicial body, except for futue enforcement of
the terms of ths Settlement Agreement after approval.19
Ths section specifically acknowledges that pares20 to the Five-State
13
14
15
16
17
18
19
20
21
23 Settlement Agreement agreed that no precedent is established by the
20
18 Note that of the 76 wire centers identified by Qwest, only 66 of them were designated as non-
impaied as a result of initial Commission decisions and the Settlement Agreement. Of those 66,
a number of them had changes in non-impaient designations or the initial effective date.
Settlement Agreement, Exhibit Qwest-4, p. 16.
Qwest was a par to the settlement agreement. See Settlement Agreement, Exhbit Qwest-4, p.
1.
19
Direct Testiony of Douglas Denney Page 12
Denney,Di
Joint CLECs, Interverors
Case No. QWE-T-08-07
May 22, 2009
1 agreement; paries may tae other positions when a settlement is not reached;
2 and the agreement will not be used as evidence, except for enforcement of the
3 terms (which is not the case here).
4 Q.IN STATES WHRE THE FIV-STATE SETTLEMENT AGREEMENT
5 WAS APPROVED, WAS IT THE PARTIES' INNT THAT TH
6 FIV-STATE SETTLEMENT AGREEMENT APPLY TO CARERS
7 THAT WERE NOT APART OF THE AGREEMENT?
8 A.No. All pares to the agreement recognized tht the intent of the Five-State
9 Settlement Agreement was tht it only apply in the states and to the pares tht
10 negotiated the agreement. Qwest's attorney in the Colorado hearg on the
11 settlement sumed it up nicely:
12
13
14
15
16
17
18
Are the moving pares simply askig for approval of this settlement
agreement only with respect to the signatory pares or are the moving
paries askig for approval of ths settlement agreement so that it
would apply to all CLECs in the state of Colorado? And the answer to
the question is, we are only askig for approval of ths settlement
agreement with respect to the paries that have executed the settlement
agreement.
19
20
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22
23
24
25
26
27
Not only that, it has been made clear to me in my discussions with the
settling paries over the past couple of days that any effort by a setting
par to assert tht the agreement should be applied to a CLEC tht is
not a signg pary would be viewed as a breach of the settlement
agreement. And I refer specifically to Section VII-B of the settlement
agreement. Furermore, any effort by a settling par to use the
settement agreement as evidence or as precedence in any Commssion
proceeding would also be viewed as a breach of VII-B in the
settlement agreement.
28
29
30
31
32
Now, VII-B provides that the agreement is a settlement of controversy,
no precedent is established; the agreement is for settement puroses
only. It shall not be used as evidence or for impeachment in any
proceedig before the Commssion or any other adstrative or
judicial body except for futue enforcement.
Direct Testimony of Douglas Denney Page 13
Denney,Di
Joint CLECs, Intervemors
Case No. QWE- T -08-07
May 22, 2009
1 So I think tht's a critical piece of inormation to have, because I th
2 that anwers one of stas critical theshold questions with respect to
3 the settlement, which is, Who does it apply to? It only applies to the
4 signatory pares.21
5 QWEST'S REQUEST IN TIDS CASE IS PROHIITED BY TH FIV-STATE
6 SETTLEMENT AGREEMENT
8
WHT IS QWEST ASKIG TIDS COMMISSION TO DO WITH
RESPECT TO THE FIV-STATE SETTLEMENT AGREEMENT IN
7 Q.
9 IDAHO?
10 A.Qwest asks ths Commssion to approve the terms of the Five-State Settlement
11 Agreement as resolution to the disputed issues in ths case, which can only be
12 done by using the agreement as a precedent in violation of its own terms.
13 Specifically, Ms. Albersheim states, "I will explai how ths (settlement)
15
methodology can be used by ths Commssion to establish procedures for
futue TRRO proceedigs.',22 In addition she states, "First, according to the
14
17
terms of the Settlement Agreement, which Qwest is askig ths Commssion
to adopt...',2 Ms. Albersheim concludes her testiony explaig that,
16
18 "Qwest also asks the commission to adopt Qwests proposed procedures as
19 outlined in the multi-state Settlement Agreement for designtion of non-
20 impaired wie centers in the futue.',24 Ms. Torrence requests the Commssion
21 "adopt the provisions and methodology contained with the Settlement
22 Agreement atthed to Qwest's Petition in ths docket and presented in Ms.
21 CO Docket 06M-080T, Reporter's Trascript Volume I, openig statement of Qwest attorney
David McGan, pp. 7, lie 14 though p. 8 line 21. See Exhibit 201, pp. 7-8.
22 Albersheim Direct p. 3, lies 18-19.
Albersheim Direct, p 31, lies 16- i 7.
24 Albersheim Direct, p. 38, lies 12-14.
23
Direct Testimony of Douglas Denney Page 14
Denney,Di
Joint CLECs, Intervernors
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Case No. QWE- T -08-07
May 22, 2009
Albersheim's testimony as Qwest Exhbit 4.,,25 Ms. Huncutt claim to have
2 demonstrated that Qwest's proposed conversion chage is reasonable, "by
3 showig tht it ha been included in a Multi State Settement Agreement
4 approved by varous state commissions and interconnection agreements with
5 other, similarly-situted carers.,,26
6 Q.SHOULD TH COMMSSION TAK ACTION REGARING
7 QWEST'S USE OF THE FIV-STATE SETTLEMENT AGREEMENT
8 IN TIDS DOCKET?
9 A.Yes. Qwest should not be relyig on the Five-State Settlement Agreement as
10 evidence in ths case, and Qwest s testiony related to the Five-State
11 Settlement Agreement should be strcken or given no weight. To the extent
12 Qwest seeks in its response testiony to provide evidence tht should have
13'been provided in its direct case, that responsive testimony should also be
14 strcken from the record.
16
DOES QWEST MA AN STATEMENTS THAT MISREPRESENT
THE SETTLEMT AGREEMENT?
15 Q.
17 A.Yes, Qwest does it on numerous occasions. For example, Ms. Albersheim
18 misrepresents the Five-State Settlement Agreement by claig tht "(t)he
19 paries have agreed tht ths methodology (the Settlement methodology of
20 counting business lines and fiber based collocators) complies with the rues
25
26
Torrence Direct, p. 27, lines 7-9.
Hunicutt Direct p. 21, lines 1-5.
Direct Testimony of Douglas Denney Page 15
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Joint CLECs, Intervemors
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May 22, 2009
established by the FCC in TRRO.,,27 In fact, the opposite is tre - the Five-
State. Settlement Agreement makes no such claims, and instead states that it
"does not represent the position that any Par would tae if this matter is not
resolved by agreement.,,28 Furer, in the Colorado wire center proceeding on the
settlement, I testified on behalf of the Joint CLECs that the business line count
methodology contaed in the agreement was inconsistent with the FCC rules,
outlined in the TRRO, regarding how business lines should be counted.29 (I wil
fuer discuss the proper methodology for counting business line counts in Section
III of this testimony.)
Another example is Ms. Hunicutt's claim that Qwests proposed rate for
conversions of UNs to non-UNs - i.e. half of its federally taifed design change
charge - "is reasonable, albeit conservative, by showig that it ha been
included in a Multi State Settlement Agreement approved by varous state
commssions and interconnection ageements with other, simarly-situted
carers.,,30 Again, the Five-State Settlement Agreement makes no such claims,
and in fact, the term "Design Change Charge" is not even mentioned in the Five-
State Settlement Agreement. Instead, the Five-State Settlement Agreement talks
about a "non-recurring charge for conversions.,,31 In addition, the $25 conversion
charge outlined in the settlement was only mandatory for "three year from the
27 Albersheim Direct p. 24, lines 5-8. A simlar false statement is also made at p. 31, lines 5-6 of
Albersheim Direct.
Settlement Agreement, Exhbit Qwest-4, p. 16.
Colorado Settlement Hearing Transcript, pp. 195-198. The relevant pages are attched as par
of Exhbit 201.
Hunicutt Direct, p. 21, lines 1-5.
Section iv of the Settlement Agreement.
28
29
30
31
Direct Testimony of Douglas Deney Page 16
Denney,Di
Joint CLECs, Interverors
Case No. QWE-T-08-07
May 22, 2009
1 Effective Date of ths Settement Agreement.',32 The "Effective Date of this
2 Settlement Agreement" was defined as the date of a Commission order approving the
3 settlement. 33 Some of the states approving the agreement did so in 2007 and
4 therefore the $25 rate could expire next year.
5 Q.EVEN ASSUMG THE FIV-STATE SETTLEMENT AGREEMENT
7
COULD BE USED AS EVIENCE, DID QWEST FOLLOW THE
TERMS OF THE AGREEMENT IN TilS DOCKET?
6
8 A.No. In addition to the fact that Qwest acted contrar to the terms of the Five-
9 State Settlement Agreement by using it as advocacy in ths docket, Qwest
10 failed to even follow the Five-State Settlement Agreement with regard to its
11 request for non-impaied status for DS3 loops in Boise Main.
12 Section VI.D of the Five-State Settlement Agreement states,
13
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20
In order to provide all interested pares adequate notice of the scope of
the requested protective order and the anticipated Wire Center update
proceeding, Qwest will provide CLECs (Joint CLECs and other
potentially afected Competitive Local Exchage Carers), includig
at least the contats identified by eah such carer for interconnection
agreement notices, via its email notification chanels, with at least five
(5) business days notice prior to fiing proposed non-impairment or tier
designtions for Commssion review.
3
21 Qwest did not notify CLECs of its proposal to classify DS3 loops in Boise
22 Mai as non-impaied. The fist tie I became aware of this request was
23 when reading Qwest's direct testimony in ths docket. To the best of my
32
33
34
TRRO Settlement Agreement, Section IV.A, Qwest Exhibit-I, p. 5.
TRRO Settlement Agreement, Secton II, Qwest Exhibit-I, p. 3.
TRRO Settlement Agreement, Secton VI.D, Qwest Exhibit-I, pp. 9-10.
Direct Testiony of Douglas Denney Page 17
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Joint CLECs, Interemors
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May 22, 2009
knowledge, Qwest stil ha not notified CLECs of its proposal to classify DS3
loops in Boise Mai as non-impaied.
Remarkably, Ms. Albersheim's indicates in footnote 20 of her testimony tht
CLECs should have been able to figue ths out by vie of Qwest s filing,
even though it took Qwest alost 10 months to figue it out for itself.35 Ms.
Albersheim wrtes:
Please note that Qwest's Petition in ths case invertently failed to
mention non-impaient for DS3 loops in the Boise Mai wie center.
However, since Qwest's Petition indicated tht it would demonstate
that the Boise Mai wie center met both stadads for Tier 1 statu in
that it ha more th 38,000 business lines and four or more fiber-
based collocators, under the stadads of the TRRO, a finding that
access to DS3 loops is non-impaied in Boise Main necessarly follows
from that evidence.36
In addition, Qwest ignores the very Five-State Settlement Agreement provision
tht it advocates should apply when it states, "Qwest may request addition of
Non-Impaied Wire Centers based in whole or par upon line counts at any
time up to July 1 of each year, based on prior year line count data.,,37 Qwest
did not request non-impaied status for DS3 loops in Boise Mai until April
17, 2009. However, Qwest relied upon line count data from December 2007
rather than December 2008.
35
36
37
Qwest fied its intial petition on June 27,2008 and its Direct Testiony on April 17,2009.
Albersheim Direct, p. 31, footnote 20.
Settlement Agreement, Exhibit Qwest-4, Section VI.A.2.
Direct Testiony of Douglas Denney Page 18
Denney,Di
Joint CLECs, Intervemors
Case No. QWE- T -08-07
May 22, 2009
1 COMMSSION DOES NOT NEED TO DECIDE ISSUES RASED IN THE FIV-
2 STATE SETTLEMENT AGREEMENT
3 Q.DOES TIDS COMMSSION NEED TO RULE ON USE OF THE FIV-
4 STATE SETTLEMENT AGREEMENT IN TIDS DOCKET?
5 A.No. The only issue the Commssion needs to decide in ths docket is the non-
6 impairment status of the Boise Main and Boise West wie centers. Other
7 issues, such as those Qwest raises though its filing of the Five-State
8 Settlement Agreement, can be negotiated by CLECs and Qwest as par of
9 provisions in their interconnection agreements or can be resolved in a futue
10 proceeding regarding a request for a non-impaired wie center when the
11 specific issue actuly is in dispute.
12 Q.IF TIDS COMMSSION WERE TO RULE ON THE ISSUES
13 OUTLIND IN THE FIVE-STATE SETTLEMENT AGREEMENT,
14 WOULD YOU ADVOCATE AN POSITIONS DIFFERENTLY THA
15 THOSE CONTAIED IN THE AGREEMENT?
16 A.Yes. Paries completed negotiation of the Five-State Settlement Agreement in
17 June of 2007. Since tht time, Qwest has made requests for fuer non-
18 impaied wie centers in multiple states in both 2007 and 2008. As a result,
19 many provisions of the ageement shifted from abstrction to reality. For
20 example, as will be discussed in more detal, the 90 day transition period is a
21 near physical impossibilty. In addition, numerous CLECs have spoken out
22 agait the agreement, the Commssion sta in Arona and Colorado
23 expressed concerns regardig the agreement, and the Commssion in Colorao
24 rejected the agreement as fied. As a result, if ths Commssion intends to rue
Direct Testimony of Douglas Denney Page 19
Denney,Di
Joint CLECs, Intervemors
Case No. QWE-T-08-07
May 22, 2009
1 on the merits of the issues contaned in the Five-State Settlement Agreement
2 over CLEC objection, then the Joint CLECs would make at least the following
3 proposals:
4 .The methodology for countig switched business lines should be adjusted to
5 conform with 47 CFR § 51.5 defig business lines as was ordered by the
6 Colorado Commssion.38 Specifically, residential and non-switched business
7 lines should be excluded from the switched business line counts. Ths issue is
8 discussed in more detal in section III of ths testimony.
9 .The methodology for identifyg fiber-based collocators should be adjusted to
10 conform with 47 CFR § 51.5 defig fiber-based collocations. Specifically
11 the reference to Express Fiber should be removed, as it is not in the Federal
12 Rules and ha led to confsion rather than clarfication. Ths issue is
13 discussed in more detal in section iv of ths testimony.
14 .The transition period outlined in the Five-State Settlement Agreement is too
17
short. It is diffcult to make any signficant network changes in the 90 day
transition period. The FCC adopted I-year transition period in the TRRd9
and a 6-month transition period in the Omaha UNE Forbearance.4o The
15
16
38
39
40
Colorao Public Utilities Commssion, Docket No. 06M-080T. In The Matter Of The Joint
Competitive Local Exchange Carer' Request Regardig The Statu Of Impairent In Qwest
Corporation's Wire Centers And The Applicabilty Of The Federa Communcations
Commission's Triennial Review Remand Order, Decision No. C08-1164, Order On Application
For Rehearg, Rearent Or Reconsideration, adopted date Ocber 29, 2008 ("Colorao
RR Order"), pp. 2-6. The Arbitrtor Recommended Decision, Decision No. R08-164, The
Commission Decision on Exceptions, C08-0969, and the Colorado RR Order ar atthed to
this testiony as Exhibit 202.
TRRO, 15. Note that the FCC set an 18-month trsition period for Dark Fiber Traport.
Omaha Forbearce Order (Memoradum Opinon and Order FCC 05-170, WC Docket No. 04-
233, September 26, 2005), 1 74.
Direct Testimony of Douglas Denney Page 20
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Joint CLECs, Interverors
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Case No. QWE-T-08-07
May 22, 2009
TRRO transition period is preferable, but either transition period would better
allow for pares to identify, plan and transition impacted circuits. Ths is
discussed in more detal in section V of ths testimony.
The conversion from a UN to an alternative argement offered by Qwest is
simply a biling change tht benefits Qwest. Nothg about the physical
facilty changes. As determed by the Colorado Commssion, Qwest should
not be able to charge CLECs for ths conversion. Furher, as determed by
the Washigton Commission, Qwest should not be allowed to change a
CLEC's circuit il when a facilty is convertd. Ths imposes unecessar
cost upon the CLEC. This is discussed in more detal in section VI of ths
testimony.
Regarding the procedures for futue requests for non-impaied wie center
designtions (Section VI of the Agreement), ths Commssion should fid, as
ordered by the Colorado Commssion, tht Qwest should provide notice to
CLECs of wie centers nearg the "non-impaient" thesholds. The
Colorado Commssion ordered Qwest to provide a list of wire centers withn
one fiber-based collocation or 5,000 business lines of reaching a non-impaired
designtion. Ths list should be provided anuay durg the tie frame that
Qwest files its TRO wie center non-impaient petitions with the states
commissions. In addition, Qwest's process for providing notice to CLECs
when Qwest intends to count that CLEC as a fiber-based collocator should be
expanded to include advanced notice to CLECs whose line counts Qwest is
relyig upon to meet line count thesholds. Ths will help CLECs understad
Direct Testimony of Douglas Denney Page 21
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Joint CLECs, Intervemors
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Case No. QWE-T-08-07
May 22, 2009
the extent to which Qwest relies upon their data and faciltate review of
Qwest's non-impaied wie center support. These recommendations will be
discussed in greater detal in section VII of ths testiony.
SWITCHED BUSINSS LINS
5 DEFINTION OF BUSINSS LINS
6 Q.
7
8
9 A.
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24 Q.
25
26
27 A.
HOW DOES TH FCC DEFIN A SWITCHED BUSINESS LIN FOR
THE PUROSES OF DETERMNIG NON-IMP AID WIRE
CENTERS?
The FCC defines a Business Line as follows:41
A business line is an incumbent LEC-owned switched access line used
to serve a business customer, whether by the incumbent LEC itself or
by a competitive LEC tht leases the line from the incumbent LEC.
The number of business lines in a wie center shall equa the sum of all
incumbent LEC business switched access lines, plus the sum of all
UN loops connected to that wie center, including UN loops
provisioned in combination with other unbundled elements. Among
these requiements, business line talies (l) shall include only those
access lines connecting end-user customers with incumbent LEC end-
offces for switched servicès, (2) shall not include non-switched
special access lines, (3) shall account for ISDN and other digita access
lines by counting each 64 kbps-equivalent as one line. For example, a
DS 1 line corresponds to 24 64-kbps-equivalents, and therefore to 24
business lines.
DOES QWEST PROPERLY RELY UPON SWITCHED BUSINSS
LINES TO DETERM "NON-IMAIRMENT" FOR THE BOISE
MAN AN BOISE WEST WIRE CENTERS IN IDAHO?
No. There are a number of problems with Qwests switched business line
41 47 C.F.R. § 51.5, Terms and Defitions, Business Line.
Direct Testiony of Douglas Deney Page 22
Deney,Di
Joint CLECs, Intervemors
Case No. QWE- T -08-07
May 22, 2009
1 counts used in ths docket. First, Qwest makes two related errors tht lead
2 Qwest to overstate CLEC switched business lie counts and thus maes
3 Qwest's tota switched business line counts uneliable. Second, I have been
4 unable to validate Qwest's Integra specific UNE loop counts and have arved
5 at numbers signficantly different than those provided by Qwest. Thrd,
6 Qwest should have used December 2008 line counts, rather than December
7 2007 line counts, to support non-impaied status for DS3 loops in the Boise
8 Mai wire center.
9 Q.DOES QWEST COUN SWITCHED CLEC BUSINESS LINS
PROVISIONED OVER UN LOOPS OR ALL UNE LOOPS IN ITS10
11 BUSINESS LIN COUNS IN IDAHO?
12 A.Ms. Albersheim is clear that Qwest counted all UN loops in its count of
13 business lines.42 By doing so, Qwest improperly infates the count of business
14 lines in the followig ways:
15 .Qwest improperly counts UN-L lines tht are used to serve residential and
16 not business customers.
17 .Qwest improperly counts unutilied capacity and capacity used to provide
18 data services in its UNE-L line counts.
19 These are some of the issues pointed out in the Colorado Decision.
21
BEFORE YOU PROCEED TO DISCUSS THESE ISSUES, PLEASE
EXPLAI THE EXTENT TO WHCH BUSINSS LIN COUNT
20 Q.
42 A1bersheim Direct, p. 34, lie 1.
Direct Testimony of Doug1as Denney Page 23
Denney, Di
Joint CLECs, Interverors
Case No. QWE-T-08-07
May 22, 2009
1 PROBLEMS AFFECT QWEST'S PROPOSED LIST OF NON-
IMP AID WIRE CENTERS.2
3 A.Though Qwest claied to support its Tier designations with both business lie
4 counts and fibe-based collocations,43 the fact is one or the other is requied,
5 not both. If Qwest meets the fiber-based collocation stadads for Tier 1 and
6 Tier 2 designations, which it curently appears Qwest did, then business line
7 counts with respect to the tier designtions are effectively irelevant.
8 However, to classify a wie center as non-impaired for DS3 loops, both a
9 business line and fiber-based collocation theshold must be met. Therefore,
10 Qwests business line counts are relevant with regard to Qwests request to
11 classify Boise Mai as non-impaied for DS3 loops. As discussed previously,
12 in order to meet ths non-impaient theshold, Qwest must have at least
13 38,000 business lines and 4 or more fiber-based collocations.
14 RESIDENTIA LOOPS SHOULD NOT BE COUNTED IN THE SWICHED
15 BUSINSS LIN COUNS
16 Q.PLEASE EXPLAI WH IT IS IMROPER TO COUNT UNE LOOPS
17 USED TO SERVE RESIDENTIAL CUSTOMERS.
18 A.It is improper because the point of the TRRO's line count measure is to size
19 the business (not residential) market. This is evident from the first sentence of
20 the FCC's business line defintion, which is as follows:
21
22
23
24
25
A business line is an incumbent LEC-owned switched access lie
used to serve a business customer, whether by the incumbent LEC
itself or by a competitive LEC that leases the lie from the
incumbent LEC. The number of business lines in a wie center shal
equa the sum of all incumbent LEC business switched access lines,
43 Albersheim Direct, p. 33, lines 7.9.
Direct Testimony of Douglas Denney Page 24
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Case No. QWE-T-08-07
May 22, 2009
plus the sum of all UN loops connected to that wie center, includig
UN loops provisioned in combination with other unbundled
elements. Among these requirements, business line talies (l) shall
include only those access lines connecting end-user customers with
incumbent LEC end-offces for switched services, (2) shall not include
non-switched special access lines, (3) shall account for ISDN and
other digital access lines by counting each 64 kbps-equivalent as one
line. For example, a DSI line corre:l0nds to 24 64 kbps-equivalents,
and therefore to 24 "business lines."
Qwest reads the second sentence of the above rue in isolation from the rest of
the defition to prop up Qwest's proposal to include CLEC residential and
non-switched lines (served via Qwest UN loops) in the switched business
line count. As correctly observed by the ALJ in the Colorado Wire Center
Case, while on the surace the second sentence may suggest counting all UN
loops, a complete readig of ths rue indicates the exact opposite. Below I
reproduce the Colorado Commssion's explanation of why UN loops servg
residential customers should be excluded:
According to the ALJ's reasonig, to include residential loops in the
cour of business lies in a wie center would impermssibly confict
with the fist sentence and would not give meaning to the entire rue.
Consequently, the ALI determed that the term "business lines" in the
second sentence must restrct the subsequent phrase "such that all
UN loops must be confed with the scope of business line as
derined in the first sentence of the paragraph."... As such, the ALJ
concluded tht given the plai languge of 47 C.F.R. § 51.5, it is
ilogical to conclude that a residential line is a business line. A non-
switched UN loop providig servce to a residential customer
conficts with both the first sentence of the rue, as well as the thd
sentence; therefore, the UN loop component of the business line
calculation by wie center, is to be modified to exclude residential and
non-switched lies. 45
44
45
47 C.F.R § 51.5 Tenn and Definitions, Business Line. (emphasis added).
Colorao RR Decision, p. 3 (footnote referencing the specifc pargrph of the ALJ
Recommended Decision is omitted), atthed to ths testiony as par of Exhbit 202.
Direct Testiony of Douglas Denney Page 25
Denney,Di
Joint CLECs, Intervemors
Case No. QWET-08-07
May 22, 2009
1 The FCC's rue requies that the business line counts include only lines used
2 to serve business customers that are switched. In contrast, Qwest s business
3 line count methodology includes lines used to servce residential (not
4 business) customers as well as lies tht are not switched. In addition to
5 violatig the express languge of the rue and being inconsistent with the
6 intent of the rue, Qwest's clai tht a residential or non-switched line should
7 be counted as a switched business line simply does not make sense.
8 Q.COULD QWEST HAVE EASILY REMOVED RESIDENTIA LOOPS
9 FROM ITS SWITCHED BUSINSS LINE COUNTS?
10 A.Yes. When a CLEC orders a loop from Qwest there is a mandatory field on
11 the Local Service Request ("LSR") where the CLEC indicates whether the
12 loop will be used to serve a business, residence or governent customer.
13 Thus, Qwest has information in its possession to enable it to remove
14 residential loops from its calculation of switched business line counts.
15 NON-SWITCHED CAPACITY OF LOOPS USED TO SERVE BUSINSSES
16 SHOULD NOT BE INCLUDED IN SWITCHED BUSINESS LIN COUNS
17 Q.WHT IS YOUR PRIMAY CONCERN ON TmS ISSUE?
18 A.Qwest counts all UN-L at their maximum potential capacity and assumes
19 tht ths ful capacity is dedicated to serve voice switched demad, which
20 mean tht Qwest counts all high-capacity/digita DSI UN-L as 24
21 individua business switched lines. Ths approach inppropriately counts
22 chanels on the high-capacity/digita UNEs tht do not provide switched
23 business servces - a prerequisite to a line being counted as a business line.
Direct Testimony of Douglas Deney Page 26
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15
16
17 Q.
18
19 A.
20
21
Case No. QWE-T-08-07
May 22, 2009
Ths method inppropriately assumes that every available chanel on an
unbundled high-capacity loop (or its equivalent digita capacity) is being used
to support switched business services, when in fact, much of that capacity
might not be used at all (vacant), and some portion of tht capacity in most
circumstace will almost certy be used for data services.
WHT METHOD OF COUNG BUSINSS LINS SHOULD BE
USED INSTEAD OF QWEST'S METHOD?
The lines that are included in the business line count must comply with the
entire defition of business line, which mean that these lines must be: (l)
used to serve a business customer; and (2) used to provide switched services
(i.e., voice); and to the extent consistent with these requirements, (3) each 64
kbps chael should be evaluated as one line. In addition, as discussed above,
whether a line is counted as a business line or not, should not depend upon
whether the customer is served by Qwest or the CLEC.46 Qwest must use the
same methodology for counting CLEC lines as it does in counting its own
business lines.
is THE FCC CLEAR THAT QWEST RETAI LINES AN UNE-L
ARGEMENTS SHOULD BE TREATED THE SAM?
Yes. Immediately afer identifying the tyes of lines tht are candidates to be
counted as business lines, the definition adopts limtig languge with the
phrase "among these requirements," thereby makg clear tht the limitig
46 This party requiement is contained withn the fit sentence of the business line defition: "an
incumbent LEC-owned switched access lines used to sere a business customer, whether by the
incumbent LEC itself or by a competitive LEC that leases the line from the incumbent LEC."
Direct Testiony of Douglas Denney Page 27
Denney,Di
Joint CLECs, Intervemors
Case No. QWE-T-08-07
May 22, 2009
1 criteria of the defition apply equally to UNE-L argements as well as
2 ILEC retal line counts.
3 Q.HAS QWEST APPLIED THESE LIMITING CRITERIA
4 CORRCTLY?
5 A.No. Just like the above discussed case of UN loops that serve residential
6 customer, Qwest's application of the FCC defition is based on reading
7 isolated components of the defition of business line in a way that conflcts
8 with other provisions:
9 First, Qwest places great emphasis on the second sentence of the defintion
10 which, when read in isolation, sttes:
11
12
13
14
The number of business lines in a wie center shal equa the sum of all
incumbent LEC business switched access lines, plus the sum of all
UN loops connected to tht wie center, including UN loops
provisioned in combination with other unbundled elements.
15 As interpreted by Qwest, it claims tht the sentence permts it to count all
16 UNE-L, without regard to whether the lines satisfy any of the requiements to
17 be considered a "business line."
18 Second, Qwest exploits an example in the defintion as an unconditional
19 directive that the maxum potential capacity of high-speed digita servces
20 should be counted, again without regard to whether any of the threshold
21 requiements to be counted as a business line are being satisfied.
22 Importtly, however, there are no absolute intrctions in the defintion tht
23 requie that all UN loops - much less every 64 kbps chanel - be counted as
Direct Testimony of Douglas Denney Page 28
Denney,Di
Joint CLECs, Interverors
Case No. QWE-T-08-07
May 22, 2009
1 a business line, whether or not they otherwse meet the requiements of the
2 definition. As I explaied above, the defintion applies additiona
3 requiements to both UN loop arangements and Qwest s retal lines tht
4 also must be satisfied before "a line" can be counted as a "business line."
5 Ths is tre for individua anog lines, as well as each digita line to which
6 Qwest has counted at its maximum, theoretical capacity.
7 Q.
8
9
10 A.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
AR YOU SAYING THAT QWEST IS INCORRCT BY COUNTING
EVERY DSI LOOP BY ITS MAM POTENTIA CAPACITY (i.e.,
AS 24 BUSINSS LINS IN ALL INSTANCES)?
Yes. Qwest counts every high capacity/digita UN loop assumg that the
maximum potential capacity is used to provide switched business line service,
when it understads fuly, that such a circumstace is by far the exception, as
opposed to the rue, in today's marketplace. Qwest appears to base its view
on its selective reading of the fi instrction, which indicates tht the
business line count:
...shal account for ISDN and other digita access lines by counting
each 64 kbps-equivalent as one line. For example, a DSI line
corresponds to 24 64 kbps-equivalents, and therefore to 24 "business
lines."
Importtly, a proper reading of the above instrction does not diect Qwest to
count each chanel in a high capacity circuit as a "business line." The critical
sentence in the quote cited above is that Qwest "shall account for ISDN and
other digita access lines by counting each 64 kbps-equivalent as one line"
(emphasis added). Ths requirement, however, does nothg more than what it
Direct Testimony of Douglas Denney Page 29
Denney,Di
Joint CLECs, Intervemors
Case No. QWE-T-08-07
May 22, 2009
1 plainly states, i.e., tht each 64 kbps-equivalent should be considered "one
2 line." Whether or not these lines should be counted as business lines,
3 however, depends upon whether the remaig requiements of the FCC
4 definition are satisfied.
5 The fact that the definition provides an example of how the analysis might
6 count a DS 1 does not require tht Qwest or the Commssion, ignore situtions
7 in which a simlar DS 1 might provide very little switched business servce.
8 Indeed, ha the FCC wanted to declare all high capacity servces and circuits
9 as business lines, it could have easily simplified the defition to say so. But
10 the FCC did not. It diected tht each 64-kbps equivalent be considered one
11 line, and then diected that other criteria - most specifically, tht the line also
12 be used to provide switched access line servce to a business customer (i. e. ,
13 voice service) - be used to determe whether each "line" should be
14 considered a business line.
15 Q.DOES ARS COUN DIGITAL LINS AT THEm MAMUM
16 POTENTIA CAPACITY?
17 A.No. The ARS instrctions permt Qwest to count "only those access lines
18 connecting end-users with their end offces for switched servces,',47 which is
19 the same requirement as in the FCC's defintion of "business lines" for its
20 unbundling framework.48 And as I explaied earlier, the FCC's business line
47
48
htt://www.fcc.gov/wcb/armis/documents/2004PDFs/4308c04.pdf at page 20.
The fist limtig factor in the FCC's defition of a business line is that "business lines": "shall
include only those access lines connectig end-user customers with incumbent LEC end-offces
for switched services." 47 C.F.R. § 51..
Direct Testiony of Douglas Denney Page 30
Deney,Di
Joint CLECs, Intervemors
Case No. QWE-T-08-07
May 22, 2009
1 defition directs tht lines be counted whether the line is served by the ILEC
2 or the CLEC. Thus, whether the lie is a Qwest retail line, or a UNE loop
3 arangement used by a CLEC to provide servce, the same criteria apply.
4 Importantly, the term "business switched access lines" is a defied term in
6
ARIS 43-08, which is the report that the FCC directed be used to measure
ILEC retal lines.49 The ARS reporting instrctions require that Qwest
5
8
report its lines in voice-equivalents,
so but, importtly, does not permt Qwest
to count empty circuits or data circuits.s1 Simply put, Qwest may not count
7
9 empty or data circuits on a DS 1 used to provide service to one of its customers
10 (it may only count the activated circuit-paths) That is perfectly consistent
11 with the FCC's rules with respect to counting business access lines relative to
12 impaient, unorttely, tht is not the process Qwest undertook.
13 Q.AR THERE AN OTHER LOGICAL FLAWS IN ALLOWIG
14 QWEST TO COUNT EMPTY CIRCUITS OR NON-SWITCHED
15 CIRCUITS IN ITS UNE-L COUNTS?
16 A.Yes. Since empty (unused) and non-switched circuits would not be counted
17 under Qwest's retail line counts, but would be counted under CLEC UNE-L
18 counts, Qwest would be allowed to count empty capacity and data circuits
19 simply because the customer switched to the CLEC.
49
51
TRRO, , 105, fn. 303.
See http://ww.fcc.gov/wcb/aris/documents/2004PDFs/4308c04.pdf (page 21) defiing
ARMS 43-08 Business Switched Access Lines as "tota voice-gre equivalent analog or digital
switched access lines to business customers." (emphasis added)
Page 20 of the instrctions for ARS 43-08 -lie the FCC's business line defition - makes
clear that Qwest may count "only those lies connecting end-user customers with their end
offces for switched services."
50
Direct Testiony of Douglas Denney Page 31
Denney,Di
Joint CLECs, Intervemors
Case No. QWE-T-08-07
May 22, 2009
1 CLECs do not use high capacity UN-L at their maxmum potential capacity
2 for puroses of providing exclusively switched business services. CLECs
3 provide sophisticated data serces (e.g., high speed internet acess, web
4 hosting, IP address, DNS, email services) over these loops. These servces,
5 while utilizing bandwidth (or 64 kbps chaels) on the CLEC's DSI loop, are
6 not switched business lines, and should therefore not be included in the count
7 of business lines.
8 Q.IF QWEST DOES NOT KNOW WHTHER A CLEC is USING THE
FULL BANDWIDTH OF THE UNE LOOPS, DOES THAT JUSTIFY
COUNTING THE FULL CAPACITY OF THE UN LOOP?
9
10
11 A.No. Complying with the FCC's ful and complete definition of "business
12 line" is not simply a matter of convenience. The rue makes clear that only
13 switched business lines are to be counted - not the maximum potential
14 capacity which would include empty circuits and data circuits. Hence, even if
15 Qwest does not know the utilzation rate of CLEC UNE-L for switched
16 business lines, Qwest canot simply toss out par of the FCC's defintion and
17 count all UNE-Ls at their maximum potential capacity regardless of whether
18 they meet the other applicable criteria.
19 Q.HOW DO YOU PROPOSE THAT THE CLEC UN LOOP COUNTS
20 BE ADJUSTED TO BETTER REFLECT TH FACT THT UN
21 LOOPS MAY BE USED TO PROVISION NON-SWITCHED DATA OR
22 SPECIAL ACCESS SERVICES?
Direct Testiony of Douglas Denney Page 32
Denney, Di
Joint CLECs, Intervemors
Case No. QWE-T-08-07
May 22, 2009
1 A.There are a number of options available to the Commssion. First, ths
2 Commssion could requie the CLECs that have lines Qwest included in its
3 line count totas provide voice access lines associated with loops it purchaes
4 from Qwest. CLECs have to supply voice access lines for each state as par of
5 the FCCs 477 reportg requiements. Ths number can then be compared to
6 the loop capacity for the entire state to estimate the percentage of voice lines
7 to loop capacity. I have performed ths calculation estimate for Integra as par
8 of Exhbit 206.
9 Table 1: Highly Confidential- Integra Estimate of Switched Business Lines as a
10 Percent of Loop Capacity.
11 See Highly Confidential Exhibit 206.
12 Alternatively, the Commission could rely on the experience of a large CLEC
13 in the state, such as Integra, to estiate results for all CLECs in the state.
14 INTEGRA CAN NOT VERI QWEST'S LOOP COUNTS IN BOISE MA
15 AND BOISE WEST
16 Q.PLEASE EXPLAIN THE PROBLEMS YOU HAVE HA
17 VALIDATING QWEST'S INTEGRA SPECIFIC UN LOOP COUNTS
18 IN THE BOISE MA AND BOISE WEST WI CENTERS.
19 A.Attempting to validate Qwest's CLEC specific loop counts is a time
20 consumg, labor intensive endeavor. Business data storage practices were
21 generally developed for different puroses and not with these non-impairment
22 designation proceedings in mind. Integra's internal data is tyically stored by
23 customer, not by the Qwest loop facilty upon which tht customer's servce
24 rides, and conta information regarding the collocation in which the
Direct Testiony of Dougla Denney Page 33
Deney,Di
Joint CLECs, Interemors
Case No. QWE-T-OS-G7
May 22, 2009
1 customer's service is connected, but not the Qwest wire center in which the
2 customer actully resides. For example, when a CLEC purchases from Qwest
3 an EEL circuit, i.e. a combination of an unbundled loop and trsport, the
4 wire center where the customer is located is different from the wie center
5 where the circuit terminates. Integra purchases many EEL circuits from
6 Qwest that termnate at the Boise Main and Boise West wire centers, though
7 the customers being served by these EELs reside in wire centers other th
8 Boise Main or Boise West.
9 Thus, in order to validate Integra specific loop counts, I may attempt to check
10 Qwest biling data to determine whether it is consistent with Integra internal
11 data. Qwest biling data presents other chalenges, as Qwest bils do not
12 clearly identify the wire centers to which a circuit belongs; there are often
13 multiple bils for each entity with a state; each bil has a unque bil date
14 which is not the December 31 tie being investigated; and bils may have
15 missing data and/or components tht mae circuit validation diffcult. Despite
16 these diffculties, in most non-impaient cases when I have used ths
17 comparson method, I have been able to verify Qwest s Integra specific line
is counts to such a degree that any discrepancies were mior and would not
19 impact the proposed non-impaient designation. An exception is the Eagan-
20 Lexington wire center in Minesota where Integra along with another CLEC
21 found signficant discrepancies with Qwest's data that Qwest was forced to
Direct Testimony of Douglas Deney Page 34
Denney,Di
Joint CLECs, Interverors
Case No. QWE-T-08-07
May 22, 2009
I withdraw its non-impaient proposal for that wire center adttg tht its
2 initial line count estiates were in error.
52
3 Qwest's loop count data for Integra in the Boise Main and Boise West wire
4 centers is proving diffcult to validate, as was the case with Eagan-Lexington.
5 For example, Qwest shows a signficant number of EEL circuits associated
6 with these two wie centers, while I canot :fd a single EEL circuit
7 associated with a customer tht resides in those wie centers.
53 In addition, I
8 have identified signficantly more DS 1 loop and 2-wire loop circuits than
9 Qwest ha counted for Integra in these wie centers. The table below shows
10 the percent of Integra specific loop counts tht I have been able to validate at
11 ths time based both on Qwest s December 2007 filing provided as par of
12 Qwest's June 27, 2008 fiing and Qwest's December 2008 data provided in
13 response to Staff data request STF 1-3.
14 Table 2: Percent of Qwest's Integra Loop Counts Validated by Integra
Percent of Inteua Loop Capacity Validated
Wire Center December December
200 200
7 8
Boise Mai 43.2%51.7%
Boise West 28.2%71.2%
15
52
53
Minesota Docket No. 07-865, Qwest Letter Withdrawig Wire Center, March 7, 2008. It is
importt to note that no signal CLEC ha enough disputes to alter Qwests lie counts beyond
the non-impaient theshold, but because two CLECs closely reviewed their data in
combination the discrepancies were enough to challenge and force a withdrwal of Qwests
fiing.
Note that we have a number of EEL circuits terminating to the Boise Mai and Boise West wire
center serving customers tht reside in other wire centers. However, these should not be
included in the Boise Main and Boise West loop counts. This has not been a point of contention
in the past and it is not clear that this is the cause of the discrepancy in this case.
Direct Testiony of Douglas Denney Page 35
Denney,Di
Joint CLECs, Intervemors
Case No. QWE- T -08-07
May 22, 2009
1 LIN COUNT DATA SHOULD BE REFLECTIV OF TIM PERIOD OF THE
2 REQUEST FOR NON-IMP AIRED WI CENTER DESIGNATION
3 Q.DID QWEST USE LINE COUNT DATA FROM DECEMBER 2008 TO
SUPPORT ITS APRIL 2009 REQUEST FOR DS3 LOOP NON-4
5 IMPAIRMNT IN BOISE MA?
6 A.Surrisingly, no. Despite Qwest's stated desire to use the provisions of the
7 Five-State Settlement Agreement in Idao, Qwest ignored the provision of the
8 agreement that would have requied Qwest to use the most recent line count
9 data available when makg a new non-impairment clai. Tht Five-State
10 Settlement Agreement provision states, "Qwest may request addition of Non-
11 Impaired Wire Centers based in whole or par upon line counts at any time up
12 to July 1 of each year, based on prior year line count data,,54 Qwest did not
13 request non-impaied statu for DS3 loops in Boise Main until April 17, 2009.
14 However, Qwest relied upon line count data from December 2007 rather than
15 December 2008.
16 Q.WH IS THE TIMG OF THE COUNTS OF SWITCHED BUSINSS
17 LINES AN FmER-BASED COLLOCATORS IMPORTANT AS
18 QWEST FILES TO CLASSIF ADDITIONAL WIRE CENTRS AS
19 NON-IMPAIRED?
20 A.The issue of the appropriate time period to review both the switched business
21 line count and the fiber-based collocation data is crucial as updates are made
22 to Qwest's Wire Center List. Ths Commission should make clear that, as
23 Qwest makes updates to its list, Qwest should use data that is
54 Settlement Agreement, Exhbit Qwest-4, Section VI.A.2.
Direct Testimony of Douglas Denney Page 36
Denney, Di
Joint CLECs, Intervemors
Case No. QWE-T-08-07
May 22, 2009
1 contemporaneous with Qwest's clai for "non-impaied" status. First, Qwest
2 should not be allowed to go fishing back though tie in attempts to classify
3 wire centers as non-impaied tht do not curently meet the non-impaient
4 statu. As described above, it is diffcult for CLECs to validate Qwest s line
5 count data. It becomes exponentially more diffcult the older the data
6 becomes. Second, Qwest should not be allowed to select one set of data from
7 one time period and another set of data from a different time period and then
8 yet another time period to actully make its clai for non-impaient. For
9 example, suppose there exists a wie center today tht ha four fiber-based
10 collocators, but fewer than 60,000 lines. Suppose that the wie center
11 surasses 60,000 lines in the futue, but by ths tie there are only thee fiber-
12 based collocators. Qwest should not be allowed to choose line counts from
13 the present and fiber-based collocators from the past. The determation of
14 "non-impaired" status should be made at the point in tie that Qwest is
15 claig an offce is "non-impaied," not from a combination of counts from
16 different time periods tht best advantages Qwest.
17 Allowig Qwest to selectively choose the time period and data upon which it
18 chooses to rely would put CLECs at a fuher substatial disadvantage
19 regardig validation of Qwest's data. It would also disadvantage CLEC
20 business plang as to when and how to expand its presence in Idao since it
21 would have to tae into account not only the curent conditions of the market,
22 but also the conditions as they existed in the past.
Direct Testimony of Douglas Denney Page 37
Denney, Di
Joint CLECs, Intervemors
Case No. QWE- T -oS-07
May 22, 2009
1 ADJUSTED QWEST LINE COUNTS
3
HOW DO YOUR FININGS AFFECT QWEST'S NON-IMAIENT
REQUEST FOR THE BOISE MA AN BOISE WEST WI
2 Q.
4 CENTERS IN IDAHO?
5 A.By makng the chages described below to the CLEC loop count data Boise
6 Main does not meet the 38,000 line count theshold to be classified as non-
7 impaired for DS3 loops. In addition, the Boise West Tier 2 designation is not
S supported by line counts and it is unclear whether the Boise Main Tier 1
9 designation is supported by line counts.
10 Change 1: Remove residential loops from the CLEC loop counts
11 Change 2: Remove disputed circuit counts from the CLEC loop counts. Ths
13
can be accomplished by applying the Integra disputed circuit percent (one
mius the validated percent) to all CLEC loop counts.
55
12
14 Change 3: Remove non-switched capacity from the loop capacity counts.
15 This can be accomplished by applyig the Integra ALE to capacity percent to
16 the existing CLEC loop capacity counts.
17 Change 4: For DS3 loops in Boise Mai, rely upon December 2008 line count
18 data consistent with the tie period in which Qwest mae its request for non-
19 impaient.
55 Integr hopes to narow this dispute thoughout the course of ths case. However, a subset of
CLECs should not be punshed by being forced to rely upon CLEC loop counts for CLECs that
failed to underte a review of their own da. Unti such time that disputes can be resolved
(and in all cases thus far they have been resolved), disputes should be applied to all CLECs not
only the CLECs diputig their counts.
Direct Testiony of Douglas Denney Page 38
Denney,Di
Joint CLECs, Intervemors
Case No. QWE-T-08-07
May 22, 2009
1 Exhbit 207 sums the impact of the chages described above.
2 Table 3: Highly Confidential -- 2007 and 2008 Qwest Line Counts with
3 Adjustments
4 See Highly Confidential Exhibit 207.
5 ANON-IMPAIRMNT FINING IS NOT REVERSIBLE
7
THERE IS UNCERTAITY REGARING QWEST'S SWITCHED
BUSINSS LIN COUNTS AN THE PROPER MAGNITUDE OF
6 Q.
8 THE ADJUSTMENTS YOU RECOMMND. HOW SHOULD TH
9 COMMSSION DEAL WITH TIDS UNCERTAITY?
10 A.It is importt to stress that once a wie center is classified as non-impaied,
11 ths classifcation is ireversible.
56 Once a findig of non-impaient at a wie
12 center is approved by the Commssion, CLECs would be forever (or until a
13 change in law) prohibited from purchaing cert UNs for any "non-
14 impaired" wire centers.
15 The Commssion should tae exta care to ensure that that it does not make a
16 fidig of non-impaient when impaient actully exist (or approve a
17 counting methodology that would lead to such a result).
18 Q.WH SHOULD THE COMMSSION BE MORE CONCERNED
19 ABOUT MAG A FALSE FIING OF NON-IMPAINT?
20 A.A fiding of non-impaient is ireversible. As mentioned above, once wire
21 centers are classified as "non-impaired," the Commssion canot fid
56 CFR §5L.319(aX4Xi), §5L.319(aX5Xi), §5L.319(e)(3)(i) and §5L.319(eX3Xii). See also
A1bersheim Dirct p. 28, lines 12-15.
Direct Testimony of Douglas Denney Page 39
Denney,Di
Joint CLECs, Intervernors
Case No. QWE-T-08-07
May 22, 2009
1 impairment for those transport routes in the futue. On the other had, if the
2 Commssion erroneously finds impaient, the only risk is tht requesting
3 carers will be able to obta unbundled access to high capacity loops and
4 tranport at TELRIC rates longer than they should, i. e., until the ILEC
5 petitions the Commssion agai to reclassify the wie center (which Qwest
indicates it plan to do periodically as conditions chage).57 In other words,6
7 an erroneous finding of impaient where none exists is correctible, and the
8 potential risk of makg such an error is less signficant than potential
9 consequences arsing from an erroneous fiding of non-impairment that
10 canot be corrected.
11
12 IV.FIBER BASED COLLOCATIONS
13 IMPACT OF QWEST'S FIBER-BASED COLLOCATION SUPPORT DATA
14 Q.WHT ROLE DOES THE NUER OF FIER-BASED
15 COLLOCATORS PLAY IN THE DETERMATION OF WI
16 CENTER "NON-IMAIRMNT" STATUS?
17 A.The number of fiber-based collocators in each Qwest wie center plays a
18 crucial role in determning a wire center's "non-impaient" status. If a wire
19 center ha thee fiber-based collocators, then tht wie center is automatically
20 classified as Tier 2, and the presence of four fiber-based collocators
57 Albersheim Direct p. 21, lines 3-5.
Direct Testimony of Douglas Denney Page 40
Denney, Di
Joint CLECs, Interverors
1
Case No. QWE-T-08-07
May 22, 2009
automatically classifies a wi center as Tier 1.58 Wire centers with four fiber-
2 based collocators and the requisite number of switched business lines (60,000
3 for DSI loops and 38,000 for DS3 loops) are classified as "non-impaired"
with respect to DSI and/or DS3 UN loops.59 Both the Tier 1 statu for Boise4
5 Mai and the Tier 2 status for Boise West curently appear to be supported by
6 the number of fiber-based collocations in those offces.
7 Q.WHT INFORMTION DID QWEST PROVIDE FOR REVIWING
8 ITS COUNS OF FIBER-BASED COLLOCATORS?
9 A.Qwest Highy Confdential Exhbit 9 and 10 to Ms. Torrence's diect
10 testiony conta a list of the naes of the fiber-based collocators for each
11 offce on the Qwest Wire Center List. Ths exhbit also conta the results of
12 Qwest's field verification which includes the type of collocation, whether
13 there is express fiber, whether the fiber is termated in the collocation,
14 whether the fiber exits the Qwest central offce, whether power can be
15 visualy verified at the cage, whether power ca be verified at the BDFB as
16 well as other notes.In addition, Qwest Highly Confdential Exhbit 8
58 In the Mater of Review of Unbundled Access to Network Elements, Review of Section 251
Unbundling Obligations of Incumbent Local Exchange Carers, Order on Remad, CC Doket
No. 01-338, WC Docket No. 04-313, 20 FCC Rcd 2533, (2004) ("TRRO") '66. The Tier status
determines the avaiabilty of DS 1, DS3 and Dark Fiber UN trsport. DS 1 UN transport is
not avaiable between Tier 1 wire centers. DS3 and Dark Fiber UN trport is not available
between wire centers designated as Tier 1 and/or Tier 2. Line counts can also play a role in
determg the Tier status of a wie center and did so for most of the wie centers on Qwests
list for Arzona. Offces with more than 38,000 switch business lines are classified as Tier 1 and
offces with between 24,000 and 38,000 business lines are classified as Tier 2.
TRRO'146.59
Direct Testiony of Douglas Denney Page 41
Deney, Di
Joint CLECs, Intervemors
Case No. QWE-T-OS-07
May 22, 2009
1 includes the results of Qwest's letter to CLECs attempting to verify the fiber-
2 based status of the CLEC.6o
3 Q.WHT CONCLUSIONS CAN BE REACHED FROM A REVIEW OF
4 THE QWEST FIBER-BASED COLLOCATION DATA?
5 A.Based upon a review of the fiber-based collocation data provided by Qwest, it
6 curently appears tht Qwest has at least four fiber-based collocators in Boise
7 Main and at least thee in Boise West, which would support Qwest s request
S for Tier 1 and Tier 2 status respectively.
9 CONCERNS REGARING QWEST'S PROCESS FOR IDENTIFNG FIBER-
10 BASED COLLOCATIONS
12
DO YOU HAVE AN CONCERNS WITH QWEST'S PROCESS FOR
IDENTIFG FIBER-BASED COLLOCATIONS AN THE
11 Q.
13 PROVISIONS RELATING TO FffER-BASED COLLOCATIONS IN
14 THE FIV-STATE SETTLEMENT AGREEMENT!
15 A.I do have a few general concerns and corrections to Qwests "non-impaied"
16 wire center list.
17 1) Qwest sent a letter to carers tht Qwest stated it believed were fiber-
18 based collocators and asked the carers to verify whether or not the carer is
a fiber-based collocator.61 Qwest counted a caer as a fiber-based collocator19
60 It is importt to note that if a CLEC did not respond to Qwests request for verification of a
fiber-based collocation, and most CLECs did not respond, Qwest intereted this as CLEC
agrement, rather than a CLEC dispute. As a result, Qwest counted these CLECs as fiber-based
collocators.
Torrence Direct, p. is, lines 6 - 11.61
Direct Testimony of Douglas Deney Page 42
Denney,Di
Joint CLECs, Interverors
1
Case No. QWE- T -OS-07
May 22, 2009
even if the carer failed to confir62 ths status. In Qwest Highly
2 Confdential Exhbit 8, Qwest provides non-confdential information tht only
3 one of the six carers responded to Qwests letter. Though Ms. Torrence
4 indicates Qwest regrets that "CLECs appear reluctat to respond," Qwest
5 Highy Confdential Exhbit 8 shows no indication of any action taen by
6 Qwest to obta a response. It is also unclear how Qwest chooses the
7 company representative to whom to send its letter. For example, despite my
S havig worked with Qwest on numerous non-impaient cases across Qwest
9 region, Qwest failed to include me on the notice sent to Integra requesting
10 verification of fiber-based collocations in Idao. Furher, as far as I am aware,
11 Qwest made no attempt with anyone at Integra to follow up regarding
12 Integra's lack of response to Qwest s request for verication. The letter
13 serves little purose if it is not reachig the intended individuas at the CLECs
14 who could provide a substative response to Qwest s claims. I will discuss
15 what steps could be taen to improve ths request for verification process in
16 Section VII regarding the most effcient process going forward.
17 2) Qwest attempted a field verification of the fiber-based collocations in
18 question. To do ths, Qwest asked its Central Offce Techncian and State
Interconnection Manger to verify the fiber-based collocations.63 The letter19
20 Qwest sent was wrtten in a way that encouraged Qwest employees to err on
62 Torrence Direct, p. 18, lines 13 - 14.
Torrence Directp. 17, lines 10-16.63
Direct Testiony of Douglas Denney Page 43
Denney,Di
Joint CLECs, Intervernors
Case No. QWE- T -08-07
May 22, 2009
1 the side of fiding fiber-basd collocations.64
2 Ths letter casts doubt on whether Qwest's verification process was performed
3 in an objective maer. In a wie center in Colorado, Qwests field
4 verification confed there was fiber, confed the fiber left the Qwest
5 central offce and confirmed the caer had power. However, ths carer
6 disputed its status as a fiber-based collocator explaing that it had copper, not
7 fiber. Upon a fuer field verification, Qwest agreed that ths carer should
8 not be counted. Though Qwest eventuly correctly designated ths caer in
9 Colorao, it does not change the fact tht the intial field verification found
10 fiber where none existed.
11 Another example tht casts doubt on Qwests field verifications occured in
12 Minesota durg the fist round of requests for non-impaied statu. At that
13 time Qwest claied its intial list of fiber-based collocators represented
carers "operatig from December 2003 though Febru 2005,,,65 but an14
15 example involving Eschelon proves tht ths was not the case. For two wire
16 centers in Minnesota Qwest counted Eschelon as a fiber-based collocator
17 even though Eschelon did not have power connected to its equipment on
18 March 11,2005. Eschelon was in the process of establishig the collocations
19 as fiber-based collocations but the collocation sites were not fiber-based
20 collocations "from December 2003 though Febru 2005" nor was Eschelon
64 Qwest has treate the actl letter as confidential and did not provide it as par of its fiing in
Idao, though it has been provided in other states.
Exhibit 203, Qwest Responses to Joint CLEC Data Requests in Arna JCDR 01-032.65
Dirct Testimony of Douglas Denney Page 44
Denney,Di
Joint CLECs, Intervemors
Case No. QWE- T -08-07
May 22, 2009
1 a fiber-based collocator on March 11,2005. Despite communcatig ths fact
2 to Qwest, Qwest contiued to count Eschelon as a fiber-based collocator.
3 3) In some states, Qwest contiues to count carers as fiber-based collocators
4 even when the verification worksheets indicate otherwse. In Arzona, Qwest
5 counted carers as fiber-based collocators even though Qwest was unable to
6 verify the carers had power at the Battery Distrbution Fuse Bay ("BDFB").
7 Qwest stated tht the purose of the spreadsheet was to verify varous aspects
S of the collocation includig an inpection of the name, power, and fiber
9 facilties.
10 4) In some states, Qwest clarfied that it did not count any CLEC-to-CLEC
11 connections as par of its fiber-based collocations.66 However, contrar to the
12 TRRO, Qwest counted such an argement in a wie center in Colorado.
13 When one carer simply relies upon the fiber of another fiber-based
14 collocator, it is inappropriate to count both carers as fiber-based collocators.
15 Counting both carers amounts to double countig. Based on my review of
16 the Idao fiber-based collocation data I curently do not believe Qwest
17 counted CLEC to CLEC cross connects for this request, but Qwest should
is expressly conf ths fact and, in any event, ths issue could playa role in the
19 futue as Qwest updates the list.
20 47 C.F.R § 51.5 defies a fiber-based collocator as follows:
66 Exhbit 203, Qwest Responses to Joint CLEC Data Requests in Arna, JCDR 01-033.
Direct Testimony of Douglas Denney Page 45
Denney,Di
Joint CLECs, Intervemors
Case No. QWE-T-OS-07
May 22, 2009
1
2
3
4
5
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7
S
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10
11
12
13
14
A fiber-based collocator is any carer, unliated with the incumbent
LEC, that maintans a collocation arangement in an incumbent LEC
wie center, with active electrcal power supply, and operates a fiber-
optic cable or comparable transmission facilty that (1) termnates at a
collocation arangement with the wie center; (2) leaves the
incumbent LEC wie center premises; and (3) is owned by a par
other than the incumbent LEC or any afliate of the incumbent LEC,
except as set forth in ths paragraph. Dark fiber obtaed from an
incumbent LEC on an indefeasible right of use basis shal be treated as
non-incumbent LEC fiber-optic cable. Two or more afliated fiber-
based collocators in a single wie center shal collectively be counted
as a single fiber-based collocator. For puroses of ths paragrph, the
term affliate is defied by 47 U.S.C. § 153(1) and any relevant
interpretation in ths Title.
15 Paragraphs 93 though 102 of the TRRO explais the FCC's rationale for ths
16 defition. Paragraph 95 states, "Our fiber-based collocation test captues
17 intermodal competitors' transport facilties..." Paragraph 101 states,
is "Additionally, we fid that fiber-based collocation provides a reasonable
19 proxy for where signficant revenue opportties exist for competitive
20 LECs. .." In paragraph 1 02, the FCC fist defines fiber-based collocators.
21 Footnote 292 to ths paragraph clarfies the conditions that must exist in order
22 for a carer to be considered a fiber-based collocator: "We find tht when a
23 company ha collocation facilties connected to fiber trsmission facilties
24 obtaed on an indefeasible right of use (IRU) basis from another carer,
25 includig the incumbent LEC, these facilties shal be counted for puroses of
26 ths analysis and shall be treated as non-incumbent LEC fiber facilties."
27 A CLEC-to-CLEC connection does not fall withn the FCC's defition of a
28 fiber-based collocator and should not be counted as separate fiber-based
29 collocations.
Direct Testimony of Douglas Denney Page 46
Denney,Di
Joint CLECs, Intervemors
Case No. QWE- T -08-07
May 22, 2009
1 5)If the Commssion reaches the issue of the Five-State Settlement
2 Agreement over CLEC objection, the Five-State Settlement Agreement
3 conta a provision regardig Express Fiber tht is not in the FCC rues and
4 which should be removed. Ths provision reads, "Express fiber will be
5 counted as a fuctional fiber facilty for puroses of identifying a fiber-based
6 collocator, if it meets the defition of fiber based collocator in 47 C.F.R.
7 §51.5 (as reflected in paragaph B(l) and subpars above). The Joint CLECs
S agree not to raise the lack of Qwest provided power when there is traffc over
9 the express fiber as the sole basis to dispute whether express fiber can be
10 counted as a fuctional fiber facilty for puroses of identifying a fiber-based
11 collocator. For the puroses of this Settlement Agreement, 'express fiber'
12 mean a CLEC-owned fiber placed to the collocation by Qwest that termtes
14
at CLEC-owned equipment in a collocation and draws power from a remote
location.,,67 It does not clarfy the application of the fiber-based collocation
13
15 rue. Qwest's testimony provides no support for this provision, other th the
16 fact that it is in the Five-State Settlement Agreement (Le., an impermssible
17 use of the ageement as evidence and precedent). Ths provision should be
is not be adopted here in Idao.
19 V.TRASITION PERIOD
20 90 DAY TRASITION PERIOD TO CONVRT FROM UNS TO AN
21 ALTERNATIV FACILITY IS NOT SUFFICIENT
22 Q.IS THE NITY DAY TRASITION PERIOD FOR IDGH-
67 Settlement Agreement, Exhibit Qwest-4, Secton V.B.3.
Direct Testimony of Doug1as Denney Page 47
Denney,Di
Joint CLECs, Intervemors
Case No. QWE-T-08-07
May 22, 2009
1 CAPACITY LOOPS AND TRASPORT's PROPOSED BY QWEST"
2 SUFFICIENT TO PROPERLY TRASITION IMP ACTED CIRCUITS
3 FROM UNES TO ALTERNATIV ARGEMENTS?
4 A.No. Based on my experience in working to implement changes to wire center
5 non-impaient designations, the 90 day tranition period is impracticable for
6 a number of reasons.
7 Q.PLEASE DESCRIE WHT MUST HAPEN IN ORDER TO
8 TRASITION NON-IMPAIRED FACILITIES FROM UNS TO
9 ALTERNATIV SERVICE ARGEMENTS.
10 A.Until the Commssion issues its order, the non-impaient designation of a
11 wire center and effective date can not be known with certty. It would be
12 ineffcient and potentially costly for CLECs to begin transition plans for wie
13 centers that may not end up being classified as non-impaied. Once a
14 designation has been ordered, then impacted circuits must be identified. The
15 tak of identifyg impacted circuits can be diffcult and tie consumg for
16 both Qwest and CLECs.7o For example, in Arzona, on multiple occasions,
17 Qwest sent Integra a list of what it claied were non-impaied circuits that
18 contaned hundreds of errors.
19 Once circuits are identified, the CLEC needs to put together a plan for
20 trsitionig away from UNs that are no longer available. This may involve
68 Qwest proposes a trition period of 180 days for dark fiber tranport.
69 Albersheim Direct, p. 27, lines 6-9.
See the discussion above regarding diffculties in validatig Qwests non-impaired circuit list.70
Direct Testiony of Douglas Denney Page 48
Denney,Di
Joint CLECs, Intervemors
Case No. QWE-T-OS-07
May 22, 2009
1 a transition of converting circuits to an alternative servce or product offered
2 by Qwest. When placing a large number of orders involvig Qwest circuits,
3 CLECs coordinate the project with Qwest. Given resource availabilty and the
4 tye of conversion, there may be limits to the number of circuits tht are
5 processed in a given day. Typically, in Integra's experience, no more than 20
6 circuits can be converted in a given day. Both CLEC and Qwest resource
7 limitations can delay the time tht it taes to complete a conversion.
S Conversions may also be more complex th switchig to another Qwest
9 product. The CLEC may determe that adding equipment to an existig
10 collocation will allow the CLEC to serve existg customers in an alternative
11 maner. New equipment needs to be purchaed, intaled and tested before
12 orders can even be placed to convert circuits to use the new equipment.
13 The CLEC may determe that instalation of a new collocation is waranted
14 to deal with impacted circuits. A new collocation can elimite the need for
15 EEL tranport. Qwest taes up to 125 days to intal a new collocation for a
CLEC.71 Collocations do not come with workig equipment. In addition to16
17 waiting for Qwest to install the collocation, the CLEC needs to purchase,
18 intal and test equipment that will be put into the collocation to serve
19 cusomer. Once the new collocation is working with CLEC instaled
20 equipment, the CLEC can star placing orders to convert circuits to use the
21 new collocation space.
71 See Qwests Servce Interval Guide, p. 43
(htt://ww.gwest.comlwho1esale/downloads/2009/090413IlnterconnSIG PV95.doc).
Direct Testimony of Douglas Denney Page 49
Denney,Di
Joint CLECs, Intervemors
Case No. QWE-T-08-07
May 22, 2009
1 MINI SIX MONTH TRASITION PERIOD IS RECOMMENDED
2 Q.WHT TRASITION PERIOD WOULD YOU RECOMMND?
3 A.For the reasons outlined above, for single wire centers, ths Commssion
5
should establish a tranition period of a year, or at least six months as was
used by the FCC in the Omaha Forbearance Order.72 When multiple wie
4
6 centers are involved (impacting multiple high capacity tranport routes or high
7 capacity loop circuits in multiple offces), a one year tranition period, as was
8 used by the FCC in the TRRO 73 would be more practical.
9 VI.UNE CONVRSIONS
10 UN CONVRSION DEFIED
11 Q.WHT IS A UNE CONVRSION, AND WHT CONCERNS DO
12 CLECS HAVE REGARING QWEST'S PROPOSED PROCESS?
13 A.A conversion happens when a circuit tht was formerly available as a UN
14 must be converted to a non-UN alternative arangement, as the result of a
15 fiding of "non-impaient." By definition, conversions will tae place on
16 live circuits tht are up and ruing and curently supportg service to End
17 User Customers. Therefore, a seamessand error free conversion is crucial
18 because, if problems arse durng the conversion, the likelihood tht a CLEC
19 customer will be placed "out of servce" is high.
73
Omaha Forbearce Order (Memoradum Opinion and Order FCC 05-170, WC Docket No. 04-
233, September 26, 2005), ~ 74.
TRO, ~ 5. Note that the FCC set an 18-month trition penod for Dark Fiber Traport. In
the Omaha Forbearce Order (Memoradum Opinon and Order FCC 05-170, WC Docket No.
04-233. September 26. 2005) the FCC estalished a six-month trition penod for carer to
establish alterntive argements.
72
Direct Testimony of Douglas Denney Page 50
Denney, Di
Joint CLECs, Interverors
Case No. QWE-T-OS-07
May 22, 2009
1 Furer, it is importt to note the "conversions" discussed in ths testiony
2 involve only changing the rate charged for the facilty and, in the vast majority
3 of circumstances, the CLEC and its End User Customer should be using the
4 same facilty that was used prior to the conversion. These conversions are
5 requied solely for purses of implementing a reguatory constrct and have
6 nothng to do with improving or otherwse maing the customer's service -
7 in essence, the conversion is intended to re-label as somethg different what
S was before a UN. These facts reinforce the need for conversions to be
9 trsparent to the CLEC's End User Customers, as any disruption in servce
10 would be completely unexpected and diffcult to explai. In other words,
11 even though these conversions are being underten to effectute Qwest s
12 reduced legal obligations relative to UNs, it is the CLEC who bears all the
13 risk of failure. The Joint CLECs, therefore, are highy motivated to ensure
14 that conversions can be accomplished seamessly, reliably, effciently and
15 cost-effectively.
16 UN CONVRSION PROPOSALS
17 Q.WHT AR THE JOIN CLEC PROPOSALS FOR UNE
18 CONVRSIONS?
19 A.The Joint CLECs propose tht, for a conversion from a UN to a non-UN
20 product or service offered by Qwest, the circuit identification ("circuit ID")
21 will not change. In addition, the Joint CLECs propose tht, when Qwest
22 converts a facilty to an analogous or alternative service arangement as a
23 result of a non-impaient fidig, the conversion will be in the maner of a
Direct Testiony of Douglas Denney Page 51
Denney, Di
Joint CLECs, Intervernors
Case No. QWE- T -08-07
May 22, 2009
1 price change on the existing records and not a physical conversion. Finally,
2 the Joint CLECs propose that the rate Qwest chages the CLEC to convert a
3 UN to a higher priced analogous or alternative service be set to zero.
4 Q.IF THE COMMSSION CONSIDERS THE FIV-STATE
5 SETTLEMENT AGREEMENT OVER CLEC OBJECTION, DOES THE
6 AGREEMENT ADDRESS THSE ISSUES?
7 A.Not entirely. The Five-State Settlement Agreement only addresses the issue of
8 the rate to be charged for the conversion of a UN to an analogous or
9 alterntive service arangement (i.e., regardless of how the conversion is
10 performed).74 The Five-State Settlement Agreement does not address the issue
11 regardig maitanig the same circuit ID and limting these tyes of
12 conversions to a price chage. Regarding the rate, the Five-State Settlement
13 Agreement specifically recognes that,
14
15
16
17
is
19
20
21
22
Paries may disagree as to the amount of the applicable non-recurg
charge afer thee years from the Effective Date of ths Settlement
Agreement, and each Par reserves al of its rights with respect to the
amount of charges afer that date. Nothg in ths Settement
Agreement precludes a Par from addressing the non-recurg charge
afer thee year from the Effective Date of ths Settlement Agreement.
A different non-recurng charge will apply only to the extent
authorized by an applicable reguatory authority, or agreed upon by the
Pares.
75
23 Q.WHT IS QWEST'S PROPOSAL FOR CONVRSIONS?
74
See secton IV.A of the Settlement Agreement, Exhibit Qwest-l. As discussed previously, the
Settlement Agreement established a rate of $25 for each convertd circuit to be applied for a
thee year time penod. As previously discussed, the Settlement Agreement was not intended to
be used as evidence outside of the six states in which it was originally negotiated.
Settlement Agreement, Section N.C, Exhibit Qwest-4, p. 6.75
Direct Testimony of Douglas Denney Page 52
Denney,Di
Joint CLECs, Intervemors
Case No. QWE-T-OS-07
May 22, 2009
1 A.On the one hand, Qwest argues that ths docket is not the proper venue to
2 determine the appropriate amount to chage for the conversion process76
3 while, on the other had, Qwest asks the Commssion to "acknowledge
4 Qwest's right to assess an appropriate charge for the activities tht it performs
5 in the requisite conversion process performed on behalf of the CLEC.,,77 In
6 addition, Qwest argues that the circuit ID must be changed durg a
7 conversion.
78
S Q.PLEASE DECRIE THE TYPE OF CONVRSIONS ADDRESSED BY
9 TilS DISPUTE.
10 A.Ths dispute applies to conversions from a UNE facilty to an analogous or
11 alterntive service arangement. These conversions would occur when there
12 is agreement, or it is determed in dispute resolution, that the UN is
13 impacted by a findig of non-impaient. Analogous or alternative servce
14 arangements include access products purchased from Qwests access taff.
15 For instace, a UN DSI loop could be converted to a DSI special access
16 circuit if it is determed tht the applicable non-impairent thesholds are
17 met for a paricular wie center (see 47 CFR § 5L.319(a)(4)).
18 UN CONVRSIONS AR WITHI TilS COMMSSION'S JUSDICTION
19 Q.IS TilS TRASITION AWAY FROM UNES WITHI THE SCOPE
20 OF SECTIONS 251 AND 252 OF THE ACT?
76 Huncutt Direct, p. 4, lines 13-16.
Hunicutt Direct, p. 20, lines 10-12.
78 Hunicutt Direct, p. 16.
77
Direct Testimony of Douglas Denney Page 53
Denney,Di
Joint CLECs, Intervemors
1 A.
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
is
19
20
21
22
23
24
Case No. QWE-T-08-07
May 22, 2009
Yes. The FCC found tht "as contemplated in the Act, individua carers will
have the opportty to negotiate specific terms and conditions necessar to
tranlate our rues into the commercial environment, and to resolve disputes
over any new contract languge arsing from differig interpretations of our
rues.,,79 Simlarly, Qwest recently chalenged the Washigton Utilties and
Transporttion Commssion ("WUTC") decision in the EschelonlQwest
arbitrtion80 regarding ths very issue, UN Conversions. The WUTC found,
As in our Fin Order, we reject Qwests contention that we exceeded
our authority under Section 252 to address these issues. In that Order,
we followed the FCC's specific gudance to carers and state
commssions to address, though the Section 252 process, the
tranition from UN servces to non-UN services and establish any
rates, terms, and conditions necessar to implement the changes
prescribed by the FCC. As envisioned by the FCC, we appropriately
exercised our jursdiction to provide CLECs a reasonable transition
process away from UNs and ensure a seamess effect on services
provided to their end-users.
We believe that Qwest continues to exaggerate the distinction between
UNE and non-UN terms and conditions. We reiterate the FCC's
conclusion, and our own, that the primar difference between the two
is the rate at which Qwest is entitled to bil for services; a rate which
was formerly limted by TELRIC pricing. By overstating the
distinction between UN and non-UN terms and conditions, Qwest
misinterprets the basis and scope of our authority.
81
79
80
TRO, '17.
In the Matter of the Petition of: QWEST CORPORATION and ESCHELON TELECOM, INC.
Pusuat to 47 U.S.C. Section 252(b), Docket No. UT-063061.
WUTC Order No. 19, Order on Reconsideration in the Eschelon/Qwest Arbitrtion, Januar 30,
2009 , " 20 - 21. Pages from the WUC Order No. 18 and Order No. 19 regardig UN
Conversions are attched to this testiony as Exhibit 204.
81
Direct Testimony of Douglas Denney Page 54
Denney,Di
Joint CLECs, Interemors
Case No. QWE- T-08-07
May 22, 2009
1 Simlarly, in a Minnesota docket regardig terms and conditions surounding
2 UN Conversions the Commssion found,
3
4
5
Afer briefing by all paries, the Admstrative Law Judge found that
ths Commission ha jursdiction in both cases. On the conversion
issue, she found as follows:
6
7
8
9
10
11
The Admnistrative Law Judge has concluded, based on the provisions
of the TRO and the TRRO, tht the FCC has expressly directed the
negotiation of rates, term, and conditions relating to conversion
processes in interconnection agreements, and consequently the
Commssion ha legal authority under § 252 to address these issues in
ths docket.
12
13 The Commission ha carefuly examed the Admstrative Law
14 Judge's recommended order and the record on which it is based. Her
15 recommended order is closely reasoned in its analysis and compellng
16 in its conclusions; the Commssion will accept and adopt it.82
17 CONVRSIONS SHOULD NOT IMACT END USER CUSTOMERS
19
SHOULD AN CHAGES BE MAE BY QWEST DURG A
CONVRSION THAT COULD RESULT IN SERVICE DISRUPTION
18 Q.
20 FOR CLEC END USERS?
21 A.No. When it has been determed that a UNE facilty needs to be converted to
22 an anogous or alternative servce arangement, CLEC and its End User
23 Customer should continue to use the same physical facilty.83 Therefore, the
24 change requied to effectute the FCC's reguatory requiements can be
82
83
In the Matter of Qwest Corpration's Conversion of UNs to Non-UN Es and In the Mattr of
Qwest Corpration's Argements for Commingled Elements, ORDER ADOPTING
ADMISTRATIVE LAW JUGE'S RECOMMNDED ORDER ON MOTION FOR
SUMY DISPOSITION, Docket Nos. P-421/07-370 & P-421/07-371, March 23, 2009, pp.
2-3. The Commission's Order and the reference ALJ Order are atthed to ths testimony as
Exhbit 205.
Ms. Hunicutt apparently agres that the conversion process should be trart to the
customer. See Huncutt Direct p. 17, lines 1-5.
Direct Testimony of Douglas Denney Page 55
Denney, Di
Joint CLECs, Intervemors
Case No. QWE-T-08-07
May 22, 2009
1 acomplished with a record-only change (i.e., changig the price of the UN
2 facilty being converted to a non-UN).
3 Q.PLEASE ELABORATE ON WH CONVRSIONS SHOULD NOT
4 ENTAI WORK THAT WOULD PUT CLECS' CUSTOMERS OUT OF
5 SERVICE?
6 A.The conversions at issue are conversions from UN to non-Section 251
7 alternative/analogous service (e.g., access product). The "conversion" in this
S instce is really a conversion from cost-based UN prices (i.e., TELRIC
9 based prices) to special access prices (e.g., conversion from UNE rates for
10 DSI loop to access rates for DSI special access circuit). However, since the
11 physical facilty otherwse remais unchaged - indeed, the end user should
12 not even know that it has been "converted" - no other changes should be
13 requied for conversion. Given that ths re-pricing should not afect the
14 operation of the facilty itself, Qwest should not be allowed to change the
15 facilty curently being provided.
16 Q.DOES THE FCC AGREE THAT CONVRSIONS SHOULD INOLVE
17 RECORD CHAGES AN AVOID NETWORK-RELATED CHAGES
is THAT COULD PUT CLECS' END USER CUSTOMERS OUT OF
19 SERVICE?
20 A.Yes. The FCC addressed the issue of conversions in the TR084 and found that
21 conversions should be seamess from the end user's perspective, and should
84 The TRO addrssed conversions from UNs to wholesale services and from wholesale serces
toUNs.
Direct Testiony of Douglas Denney Page 56
Denney,Di
Joint CLECs, Interemors
Case No. QWE-T-OS-07
May 22, 2009
1 involve only biling changes from Qwest's perspective. At pargrph 586 of
2 the TRO, the FCC discusse the seamessness of conversions:
3
4
5
Converting between wholesale services and UNs or UN
combintions should be a seamess process tht does not afect the
customer's perception of servce quaity.
6
7
S
9
10
11
12
13
The FCC codied the requiement tht conversions should be seamess from
the perspective of the CLEC's end user in 47 CFR §5L.316(a) as follows:
(b) An incumbent LEC shall perform any conversion from a wholesale
service or group of wholesale services to an unbundled network
element or combination of unbundled network elements without
adversely affectig the service quaity perceived by the requestig
telecommuncations carer's end-user customer.
14 And at paragraph 588 of the TRO, the FCC addressed the notion that
15 conversions are biling chages:
16
17
is
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20
21
22
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24
25
26
27
2S
29
588. We conclude that conversions should be performed in an
expeditious maner in order to minimize the risk of incorrect
payments. We expect carers to establish any necessar timeframes to
perform conversions in their interconnection agreements or other
contracts. We decline to adopt AL TS' s suggestion to requie the
completion of all necessar billng changes with ten days of a
request to perform a converion because such tie fres are bettr
established though negotiations between incumbent LECs and
requesting carers. We recogniz. however. that convertg
between wholesale services and UNs (or UN combinations) is
largeiy a bilg function. We therefore expect carrers to establih
appropriate mechanisms to remit the correct payment after the
conversion request, such as providing that any pricing changes sta
the next biling cycle following the conversion request.
30 It is clear from the languge above that the FCC's concern was diected at
31 ensurg proper payment for the facilty, depending on whether it is a Section
32 251 UN or a wholesale servce (e.g., access product), and did not envision
Direct Testiony ofDoug1as Denney Page 57
Deney,Di
Joint CLECs, Intervemors
Case No. QWE-T-08-07
May 22, 2009
1 work or physical changes on the ILEC's par leading to the potential for
2 customer disruption.85
3 IT IS UNCESSARY TO CHAGE A CIRCUIT ID FOR PURPOSES OF A
4 UN CONVRSION
5 Q.WHT IS A CIRCUIT ID AN WHT IS ITS PURPOSE?
6 A.The term is somewhat self-explanatory. A circuit il is just tht, a number or
7 code that identifies a specific circuit, generally by defining its two end points
8 - referred to as the "A" and "Z" location. Both CLEC and Qwest use ths
9 circuit ID thoughout their operational support systems to identify tht circuit
10 for numerous activities includig biling and repair matters.
11 Q.SHOULD A CIRCUIT ID CHAGE DURG A CONVRSION?
12 A.No. As described above, in the vast majority of circumstaces in which
13 CLECs will be requied to convert an existing circuit from a UN to an
14 alterntive servce arangement, the physical facilty need not (and should not)
15 chage. As such, the circuit il need not (and should not) change either. This
16 is importt from Integr's perspective because Integra specifically tracks that
17 paricular facilty and the customer it serves via the circuit il. Numerous
18 Integra systems rely on that circuit il in providig ongoing biling and
19 customer servce to the customer. To the extent Qwest is allowed to (a)
85 The FCC did mention in pargrph 586 of the TRO that there may be an increase in the risk of
customer disruption caused by CLECs grooming inter-exchange trffc in order to comply with
the eligibilty criteria However, ths potential for disruption stems from decisions made by the
CLECs, not Qwest. The fact that the FCC mentioned the potential for End User Customer
disruption caused by CLEC groomig, yet did not mention the possibilty for disruption caused
by Qwest (and indeed requies conversions to be seamess), indicates that the FCC never
envisioned the potential for Qwest-causd customer diruption because from Qwests
perspective, the conversion involves simply changig the rate that applies to the facilty.
Direct Testimony of Douglas Denney Page 58
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Case No. QWE-T-08-07
May 22, 2009
unecessarly chage the underlyig facilty simply to effectute what should
be accomplished by a biling chage and then (b) assign a new circuit ID to
the same arangement, Integra's systems will be substatially, adversely, and
unecessarly affected. Ths will be accompaned by notable cost and
inconvenience. Likewise, unecessarly re-aranging facilties puts the
customer at risk of losing service - a customer who never asked to be
converted and should not even realize that it happened.
PLEASE EXPLAI HOW CHAGING CIRCUIT IDS DURING
CONVRSIONS COULD AFFECT CLECS' END USER CUSTOMERS.
Chaging the circuit ID for a circuit that is aleady in place and workig well
for a customer in connection with "convertng" the circuit from a UN to an
alterntive argement, signficantly increases the risk of customer
disruption. For intace, Qwest processes circuit ID changes using
"disconnect" and "new" service orders. A simple tying error in an order
could send the order to Qwest facilties assignent with a "disconnect" on the
order, and the customer wil be erroneously disconnected and put out of
service. In addition, if records are not correctly and tiely updated to show
new circuit IDs in either Qwest or CLEC systems, problems are likely to arse
in the areas of maintenace and repai. For example, if six months afer the
conversion, the end user notifies the CLEC that its circuit is in need of repair,
but the circuit ID is incorrectly stored in either the CLEC or Qwest systems as
a result of an unecessar physical conversion, it is likely tht the CLEC and
Qwest will be unble to effectively open a trouble-ticket. As a result, the
Direct Testimony of Douglas Denney Page 59
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Case No. QWE- T -OS-07
May 22, 2009
1 repai fuction wil be delayed and is likely to requie substatial additiona
2 resources to resolve, as compared to a normal repai ticket. Al of ths can be
3 avoided by makg sure tht Qwest does not change circuit IDs for
4 conversions.
5 Q.HAS QWEST ALREADY PROCESSED CONVRSIONS WITHOUT
6 CHAGING CIRCUIT IDS?
7 A.Yes. When Qwest fist converted special access circuits to UNs, the origina
8 circuit IDs did not chage. To date Qwest ha been unble to explain why the
9 circuit ID must be chaged in the curent sitution when no such change was
10 required in previous conversions.
11 Q.is QWEST REQUIRED BY FCC RULES TO CHAGE THE CIRCUIT
12 IDS FOR CONVRTED CIRCUITS?
13 A.No. Qwest contends that 47 C.F.R. § 32.12(b) and (c) requies Qwest to
14 change the circuit identifier.86 Ms. Huncutt opines that "(i)n order to
15 sufciently maita its subsidiar records to support its accounting for UN
16 servces versus its Private Line servces, Qwest must mainta accurate circuit
17 IDs that properly track circuits separately." 87
18 However, the FCC provisions cited only requie Qwest to maintan orderly
19 records with sufcient detaL. The FCC does not prescribe how Qwest is to use
20 circuit identifiers to mainta orderly records. Huncutt's conclusory
21 statement tht accurate accounting and reportg requires chagig circuit
86
87
Huncutt Direct, p. 16, lines 3-5.
Huncutt Direct, p. 16, lies 22-25.
Direct Testimony ofDouglas Denney Page 60
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Joint CLECs, Intervemors
Case No. QWE-T-OS-07
May 22, 2009
1 identifiers begs the question of whether chaging the circuit identifier is
2 necessar. Presumbly Qwest is able to mainta orderly records for its QPP
3 products without changig the circuit identifier of the underlying line. As
4 previously stated, prior to April 2005, Qwest did not requie a change to the
5 circuit IDs when a CLEC requested a conversion from Private Line/Special
6 Access to an EEL. When Qwest implemented its new process to chage the
S
circuit ID, CLECs were given the opportty to opt out of the changes to
their embedded base of circuits.
88 When given ths opportty all CLECs
7
9 chose to opt out of ths chage in circuit ID, 89 because no CLEC wants to put
10 its end user customers at risk, especially when there is no chage in the
11 fuctionality of the circuit.
12 Q.YOU DESCRIED TH RISK OF DISRUPTION FACING CLECS'
15
CUSTOMERS IF QWEST CHAGES THE CIRCUIT IDS FOR
CONVRSIONS. WOULD QWEST'S RETAIL CUSTOMERS FACE
TIDS SAM RISK?
13
14
16 A.No, and ths is a very importt point. Conversions only apply to the facilties
17 used by CLECs, and not facilties used by Qwest, and therefore, Qwest s retal
18 customers would face none of the risks that are inerent in Qwest s proposal
19 to chage circuit IDs durg conversions. The FCC recognzed ths very point
20 when addressing conversion chages in paragraph 587 of the TRO:
88 See Exhbit 203, Qwest Response to Joint CLEC Data Request 01-022 in Arona Wire Center
Proceeding.
See Exhbit 203, Qwest Response to Joint CLEC Data Request 01-023 in Arona Wire Center
Proceeding.
89
Direct Testimony of Douglas Denney Page 61
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Case No. QWE-T-OS-07
May 22. 2009
1
2
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Because incumbent LECs are never requied to perform a conversion
in order to continue servng their own customers, we conclude tht
such charges are inconsistent with an incumbent LEC' s duty to
provide nondiscriinatory access to UNs and UN combinations on
just, reasonable, and nondiscrinatory rates, terms, and conditions.
6 The FCC was speakg to conversion charges that ILECs may attempt to
7 assess, but the same reasonig holds tre with respect to circuit ID chages.
S Qwest is never requied to perform a conversion in order to continue serving
9 its own customers, and therefore, Qwest's proposal to chage circuit IDs for
10 conversions to CLEC circuits: increaes the risk for CLEC customer (not
11 Qwest customer) disruption; undermines the FCC's requiements for seamess
12 conversions; and fails to comply with Qwest s obligation to provide access to
13 UNs on just, reasonable, and nondiscriatory rates, terms and conditions.
14 Q.WIL CHAGING CIRCilT IDS FOR CONVRSIONS IMOSE
15 COSTS ON TH JOIN CLECS?
16 A.Yes. If Qwest changes circuit IDs for conversions, the Joint CLECs will be
17 forced to modify its systems and its records to account for the new circuit ID.
is Qwest complains about purorted costs tht it would incur to leave the circuit
19 ID unchanged, but ignores the costs imposed on CLECs by changig the
20 circuit ID for the same facilty.
21 QWEST SHOULD NOT CHAGE CLECS TO CONVRT UNS TO IDGHER
22 PRICED ALTERNATIVE FACILITIES SOLD BY QWEST
23 Q.SHOULD CLECS BEAR THE COSTS ASSOCIATED WITH CIRCilT
24 IDCHAGES?
Direct Testimony of Douglas Denney Page 62
Denney.Di
Joint CLECs, Interemors
Case No. QWET-OS-07
May 22, 2009
1 A.No. The physical circuit aleady exists and CLECs paid substatial non-
2 recurg charges to establish tht circuit. There is no techncal need to
3 chage tht circuit just to convert it from one service-type (U) to another
4 (special access). It is Qwest's decision to make a physical chage (or change
5 unecessarly the il for tht circuit), and it is Qwest who should bear the
6 costs. Otherwse, there will be no economic discipline associated with
7 Qwest's decision. In a circumstace in which Qwest can foist additionàl costs
S on its competitors like 36Onetworks or Integra, while at the same time
9 endangerig the service provided by its competitors by requig a physica
10 conversion, all the while garerig additional fees for unecessar non-
11 recurg charges, why wouldn't Qwest requie an unecessar physical
12 chage in every circumtace? Unforttely, all of these additional fees and
13 expenses will have to ultimately be paid by Qwests competitors and/or their
14 End User Customers and, therefore, the Commssion should adopt the process
15 which is most effcient and least likely to disrupt customer servces.
16 Q.DID QWEST FILE COST SUPPORT TO SUBSTANIATE ITS
PROPOSAL TO CHAGE CLECS FOR UNE CONVRSIONS?17
is A.No. Ms. Huncutt explais, "Qwest is neither submitting a cost study nor is
19 it requesting approval of a paricular rate.,,90 Instead, as described above,
20 Qwest is "simply askig tht ths commission acknowledge tht Qwest is
21 entitled to be compensated...',9
90 Huncutt Direct, p. 11, lines 1-2.
91 Hunicutt Direct, p. 11, lines 3-4.
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DOES QWEST CHAGE THE DESIGN CHAGE CHAGE TO ITS
SPECIA ACCESS CUSTOMERS IN ORDER TO CHAGE A
CIRCUITID?
No. Qwest proposes to chage its Interstate Access Design Change Charge
times a factor of 50% for conversions from UNs to Qwest alterntive
servces,92 however, Qwest's Interstate Special Access taff clearly states
that there will be no chage for a change in circuit ID.
Administrtive changes will be made without charge(s) to the customer.
Administrtive changes are as follows:
· Change of customer name (i.e., the customer of record does not change
but rather the customer of record changes its name - e.g., XYZ Company
to XYZ Communications),
. Change of customer circuit identification, ...93
Thus, for Qwest's special access customers, including Qwest s retal
customers who purchase out of Qwest's special access taff, not only does
Qwest not requie the customer to change circuit identification numbers as a
result of the TRO, if the customer were to change the circuit identification,
Qwest would not chage.
92
Huncutt Direct, p. 9, lines 1-13. It should also be noted that Ms. Hunicutt's description of the
derivation of the $25 charge from the Settlement Agreement is factully incorrect. Firt, it
should be noted that Ms. Hunicutt was not a par of the Settement Agreement negotiations.
Second, at no time durg the settlement agreement dicussions did CLECs indicate that Qwests
design change charge was appropriate. In addition, at no time did the CLECs discuss a factor
that should be applied to the Design Chage charge. The CLECs did agee to a $25 chare and
allowed Qwest leeway as to how it implements that charge, which Qwest has chosen to do so
though the Federa taff and a fator.
Qwest Tarff FCC #1, Section 7.1..A.2.C(3). Qwests taff is available on-lie at
(htt://taiffs.gwest.com: 8000/idc/groups/public/ documents/tafcc 1 s007p021.pdf#Page= 1 &
Page11ode=bookrarks).
93
Direct Testiony of Douglas Denney Page 64
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Joint CLECs, Intervemors
Case No. QWE- T -OS-07
May 22, 2009
1 QWEST'S DESIGN CHAGE CHAGE IS INAPPROPRITE FOR UNE
2 CONVRSIONS
3 Q.is QWEST'S DESIGN CHAGE CHAGE AN APPROPRIATE
CHAGE FOR CONVRSIONS FROM UNS TO AN4
5 ALTERNATIV PRODUCT OR SERVICE?
6 A.No. Qwest's defition of a Design Change indicates that it is intended to
7 recover for engieerig activity and no engieerig activity is necessar to
S record circuit inormation.
9 Qwest's FCC Interstate Tarff#1 defies ths "Design Chage Charge" as:
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"(A )ny change to an Access Order which requires engineering
review. An engineerig review is a review by Company personnel of
the servce ordered and the requested chages to determne what
chage in the design, if any, is necessar to meet the chages
requested by the customer. Design changes include such thgs as a
chage of end user premises with the same serving wie center, the
addition or deletion of optiona featues, fuctions, BSEs or a change
in the tye of Tranport Termation (Switched Access only), tye of
chanel intedace, tye of Intedace Group or techncal specification
package." 94
20 Because the UN circuits are converted "as is," no physical chage to the
21 circuit is requied. Ths change is a record chage only in order to update the
22 Qwest systems. The circuit is up and workig as a UN. Since there is no
23 need to change the circuit il, there is no need to "review" or "validate" the
24 circuit design or to ascert whether "physical chages to the circuit are
25 needed."
94
Qwest Tarff FCC No.1, section 5.2.2C. (emphasis added).
Direct Testimony of Douglas Denney Page 65
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Ms. Huncutt describes thee positions involved in a conversion: a Service
Delivery Coorditor (SDC), a Designer, and a Servce Delivery
Implementer,9S but no activity that any of them do associated with a
conversion is "engineerig design."
First, Qwest requies CLECs to place an order. The SDC processes the order
to remove the circuit from the CRIS biling and put it into lAS biling and
chages the circuit identifier,96 both of which are solely for Qwests
convenience or advantage rather than being techncally necessar.
Ms. Huncutt describers the Designer as conducting a review of a workig
circuit operating without trouble in order to determine whether any "physical
chages to the circuit are needed." 97 A more unecessar step could scarcely
be imagied. Ms. Huncutt also identifies two other taks involving the
Designer. She states tht the Designer "ensures tht the design records for the
converted, non-UNE service match the origin UN service,,98 and that the
Designer "reviews the circuit inventory in the Tru Integrated Record
Keeping System ("TIRS") database to ensure accuracy and database
integrty." 99 It appears that what the Designer does is tae the opportty to
correct errors in Qwest's database at CLEC expense. CLECs have aleady
paid intalation chages when the UN circuit was initially purchased.
9S
96
Huncutt Dirct, pp. 13, line 22 - 14, line 2.
Huncutt Direct p. 14, lies 5-15.
Huncutt Direct, p. 15, lines 4-10.
Huncutt Direct p. 15, lines 4-5.
Hunicutt Direct, p. 15, lines 7-S.
97
98
99
Direct Testiony of Douglas Denney Page 66
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Case No. QWE-T-08-07
May 22, 2009
1 CLECs now are to be charged again to correct any errors in Qwest s systems
2 from earlier activity.
3 The Service Delivery Implementer has "overall control for order
4 provisionig.,,100 Because no provisionig is required, there is nothg for the
5 Implementer to control. The Implementer also "verifies the Record-In and
6 Record-out orders and completes the update of the circuit orders in the WF A
7 system." 101 In essence, the Implementer checks to see tht the Coorditor's
8 work was correct. However, because the Coordintor pricipally processes
9 CLEC orders before they go into Qwest s systems, it would seem more
10 sensible to check the accuracy of the order before it is submitted. If an
11 accurate order does not flow though to update Qwests systems properly, tht
12 is a system issue and cost, not a conversion cost.
13 In other words, Qwest wants to impose an engieerig charge on CLECs to
14 recover the costs of undertg unecessar work that does not actuly
15 involve any engineerig. The chage is inppropriate and the Commssion
16 should not allow it.
17 SEAMESS CONVRSIONS CAN BE ACCOMPLISHED THROUGH A SIMPLE
18 BILLING CHAGE
19 Q.IS THE JOIN CLEC PROPOSAL THAT CONVRSIONS CAN BE
21
ACCOMPLISHED THROUGH A BILLING CHAGE, SUPPORTED
BY THE FCC'S FININGS ON CONVRSIONS?
20
100 Huncutt Direct, p. 15, lines 11-12.
101 Huncutt Direct, p. 15, lines 12-13.
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Case No. QWE-T-OS-07
May 22, 2009
Yes. As explained above, the FCC has found in paragrph 588 of the TRO
tht conversions afect the biling of rates - not physical chages in the
facilties.
WH IS IT CRITICAL TO ENSUR SEAMESS CONVRSIONS?
For staers, seamess conversions are required by the FCC (see, TRO, ~ 586).
In addition, a conversion is a reguatory constrct and not a change requested
by a CLEC or its customer, and because only the price of a facilty is
changig, service to end users should not be put at risk. The Joint CLEC
proposal prohibits Qwest from puttg CLECs' customers at risk by
performg unecessar physical rearangements. Furermore, since Qwest s
customers will not face any of the same risks (because ILECs do not need to
perform conversions to contiue to serve their customers), CLEC's End User
Customers will face a higher likelihood of service outage problems th will
Qwest's customers. These problems will be directly attbutable to Qwest s
insistence on makng physical facilty changes when the FCC has already
found tht record-only changes are required.
YOU HAVE EXPLAINED ABOVE THAT CONVRSIONS INOLVE
A BILLING CHAGE AN NOT A CHAGE IN PHYSICAL
FACILITY. is THERE A SIMPLE, TECHNCALLY FEASIBLE WAY
IN WHCH QWEST COULD EFFECTUATE TIDS BILLING
CHAGE AND IMPLEMENT THE CONVRSION?
Yes. Qwest can accomplish ths conversion (or re-pricing) though the
application of an adder or surcharge to bil the difference between the old rate
Direct Testimony of Douglas Denney Page6S
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Joint CLECs, Interverors
Case No. QWE- T -08-07
May 22, 2009
1 and new rate (i.e., pre and post conversion rates). For intace, if a DSI UN
2 loop was converted to a DS 1 special access circuit, the adder or surcharge
3 would reflect the difference between the UNE rate and the special access rate.
4 Q.HAS QWEST ALREADY USE SUCH AN ADDER/SURCHAGE
5 APPROACH TO REFLECT PRICE CHAGES?
6 A.Yes. Qwest ha aleady demonstrated ths with its implementation of the
7 Qwest Platform Plus ("QPP") ageements. Under those agreements, QPP
8 circuits are subject to anua rate increases. Qwest does not physically
9 convert the circuits to convert to the new rates. Instead, Qwest re-prices the
10 circuits by using an "adder" or "surcharge" for biling the difference between
11 the previous rate and the new rate.
12 Q.IS THE USE OF ADDERS UNER THE QPP AGREEMENTS
13 STRONG EVIDENCE THAT SUCH A RE-PRICING
14 METHODOLOGY COULD BE USED TO IMLEMENT
15 CONVRSIONS?
16 A.Yes. The rate changes involved with QPP are signficantly more complex
17 than rate changes involved in converting UN rates to analogousalterative
is service rates. That is, QPP rates differ depending on whether the End User
19 Customer is a residential or a business customer, and depend upon whether
20 the CLEC has met cert volume quotas. Implementing such are-pricing
21 methodology should be easier to implement for conversion adders, which
22 would not var based on these factors.
Direct Testiony of Douglas Denney Page 69
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Joint CLECs, Interemors
Case No. QWE-T-08-07
May 22, 2009
1 OTHER STATES HAVE FOUN A CHAGE FOR UN CONVRSIONS IS
2 INAPPROPRITE
3 Q.HAVE OTHER STATES FOUND THAT ILECS SHOULD NOT
4 CHAGE A CONVRSION CHAGE FOR CONVRTING UNS TO
5 ALTERNATIV FACILITIES OFFERED BY THE ILEC?
6 A.Yes. The Californa Public Utilties Commssion found many of the concerns
7 mentioned sufcient to prohibit the ILEC from assessing charges for
8 convertg UNE circuits to special access. The Californa Commission
9 explaied:
10
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21
We concur with the FCC's finding in ~ 587 of the TRO . . . that
because ILECs are never required to pedorm conversions in order to
continue servg their own customers, such chages are inconsistent
with Section 202 of the Act, which prohibits carers from subjecting
any person or class of persons to any undue or uneasonable prejudice
or disadvantage. In the followig paragaph, the FCC also reiterates
tht the conversions between wholesale servces and UNs are
'largely a biling fuction.' Given the FCC's fiding cited above, it is
inappropriate to charge a nonrecurg charge for record changes.
Therefore, we conclude that no charges are warranted for
conversions and transitions that to not involve physical work. . . .
102
22 The Colorado Commssion also found, citing the ALI's conclusions below,
that Qwest canot charge for conversion ofUNEs to private lines.10323
24
25
26
A well-recogned reguatory priciple is that the cost causer should be
requied to bear the resultig cost. If cost causation is impossible to
determine, then costs should be borne by the beneficiar. There has
102 Application of Pacifc Bell Telephone Company, d/b/a SBC California for Generic Proceeding
to Implement Changes in Federal Unbundling Rules Under Sections 251 and 252 of the
Telecommunications Act of 1996, Decision Adopting Amendment to Existing Interconnection
Agreement (Jan. 26, 2006) (CA Arbitrtion Decision) at 35 (emphasis added).
103
Colorado Order on Exceptions, ~ 62, fiding, "we agree with the ALJ's reasonig on ths issue.
A non-impairent determation wil alady signficatly increase the recurg charges paid
by CLECs to the benefit of Qwest. We fid no reason to requi an adtional non-recurg
charge." Ths decision is athed as par of Exhbit 202.
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Case No. QWE- T -OS-07
May 22, 2009
been no showing that CLECs caused any required change to continue
their existing service and that no direct benefit will be derived by any
change required. Rather, the conversion of services exposes only
CLEC customers to potential risk of service disruptions durg
transition. The evidence is unebutted that Qwest, at least initially, is
the beneficiar oflesser regulation from the FCC's determination that
a marketplace is non-impaired. It is also unrebutted that a non-
impairment determination will signficantly increase Qwest
competitors' recurrng charges. It has not been shown that Qwest s
initially increased revenue from ths extraordinary event wil not
recover transition costs.
Qwest has not demonstrated that the NRC should be recoverable from
CLECs or that costs must be recovered from a conversion charge.
Because UN- P conversions are caused by Qwest, or the FCC to the
benefit of Qwest, to the detriment of CLECs, it is just and reasonable
that Qwest bear the cost of transitioning in the most effcient means.
In any event, Qwest has not justified imposition of the NRC as a direct
conversion cost.
104
PROCESS GOING FORWARD
DOES THE COMMISSION NEED TO ESTABLISH A PROCESS IN
THIS PROCEEDING, AS SUGGESTED BY QWEST10S?
No. The Commission need not establish a process for futue filings in this
docket. Idaho already has procedures establish for Qwest to make filings
before the Commission, just as Qwest was able to do with the request that
established this docket.
DID QWEST PROVIDE ANY SUPPORT TO JUSTIFY THE USE OF
THE FIVE-STATE SETTLEMENT AGREEMENT PROCESS IN THIS
DOCKET?
104 Colorado AU Order in TRO Docket 06M-OSOT, Decision No. ROS-0164, ~~ 116-117. This
decision is attched as par of Exhibit 202.
ios
Over CLEC objection, and in spite of the agreement's terms, Qwest is proposing that the process
established in Section VI of the Settlement Agreement be used in Idaho. Albersheim Direct, p.
22, lines 5-6.
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No, Qwest simple refers to the fact that it was agreed upon by CLECs in other
states and approved by some state Commssions,106 without recognzing its
own agreement tht it would not make ths very arguent.
BASED UPON YOUR EXPERIENCE IN OTHER STATES
REGARING THE PROCESS FOR UPDATING QWEST'S NON-
IMPAIRED DESIGNATIONS, DO YOU RECOMMND AN
IMPROVEMENTS UPON THE PROCESS OUTLIND IN THE FIV-
STATE SETTLEMENT AGREEMENT, IF THE COMMISSION
CONSIDERS IT OVER CLEC OBJECTION?
Yes. Section VI.A of the Five-State Settlement Agreement describes when
Qwest may request additions of Non-Impaied Wire Centers. Ths section
allows Qwest to make requested updates at any time based on fiber-based
collocations, but only once a year, up to July 1 based on prior year lie count
data. I recommend that, in addition, Qwest be required to provide anualy, to
CLECs doing business in Idao, all wie centers that are with 5,000 lines of
reaching a new non-impaied designtion107 or with one wire center of
reachig Tier 1 or Tier 2 statu.108 This will enhce CLEC business plang
106 Albersheim Direct, pp. 21, line 19 though 22, line 2. As discussed previously, th is a violation
of the Settlement Agreement.
107 The relevant line counts are 24,000 lines (Tier 2),38,000 lines (Tier 1 or par ofDS3 Loop Non-
Impairent), and 60,000 lines (a par ofDSl Loop Non-Impairent
108 This would be a list of wire centers with 2 or 3 fiber-based collocators.
Direct Testiony of Douglas Denney Page 72
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Case No. QWE-T-08-07
May 22, 2009
1 and provide CLECs with the same inormation as is possessed by Qwest
2 regarding potential futue non-impaient.109
3 Section VI.E.l of the Five-State Settlement Agreement requies Qwest to
4 provide a copy of the letter sent by Qwest "to collocator(s) identified by
Qwest as fiber-based collocator(s) requestig validation of statu,,,110 and5
6 "responses."ll As discussed previously, Qwest should make more of a
7 serious effort in order to obta verifications from CLECs. This can be
8 accomplished by sending a notice to at least the contats identified by each
9 carer for interconnection agreement notices, via Qwest s email notification
10 chaels.112 Qwest should also be required to follow up with carers, if
11 Qwest receives no response from that carer. In addition, Qwest should
12 notify any CLEC tht Qwest intends to rely upon tht CLEC's business line
13 counts in its request for a new non-impaient designtion.
14 Section VLG describes the lengt of the transition period for new non-
15 impaient designtions. As discussed in section V to ths testimony, the
16 Joint CLECs recommend at least a six month trsition period, or longer
17 dependig on the number of new designations.
109
Qwest would obtain th information anually though its deteration whether it has met the
FCC's non-impairent thsholds as par of its determination whether to make a filing on or
before July 1 each year.
110 Settlement Agreement, Section VI.E.l.d, Exhbit Qwest-4, p. 10.
111 Settlement Agreement, Section VI.E.l.e, Exhbit Qwest-4, p. 10.
112
Ths notification process is used in Secton VI.D of the Settlement Agreement, p. 9-10, to alert
carers of a pendig request for changes to non-impairent designtions.
Direct Testiony of Dougl Denney Page 73
Denney,Di
Joint CLECs, Intervemors
Case No. QWE-T-OS-07
May 22, 2009
1 QWEST SHOULD PROVIE NOTICE OF WIRE CENTERS NEARG THE
2 FCC'S NON-IMPAIRMNT THRSHOLD
3 Q.WIL THE REQUIMENT FOR QWEST TO PROVIE NOTICE
TO CLECS OF WIRE CENTERS NEARG A NON-IMAIRMNT4
5 DESIGNATION REQUI EXTRA TIM CONSUMG WORK
FROMQWEST?6
7 A.No. Qwest ha already admtted tht it plans to make request for new non-
S impaired designations, assumng a wie center meets the non-impaired
9 criteria, based on line counts each year before July 1.113 In order to mae a
10 determtion as to whether any new wie centers meet the FCC's non-
11 impairment criteria, Qwest must determe the number of fiber-based
12 collocations and business line counts for each wire center. As a result, Qwest
13 already has in its possession the inormation that the Joint CLECs are
14 requesting. The effort to single out wie centers that are near the non-
15 impaient thesholds and provide notifcation to CLECs would be
16 . . al114m. .
17 Q.WH IS INORMTION REGARING WIRE CENTERS NEARG
is THE FCC'S NON-IMPAIRMNT THRSHOLDS OF VALUE TO
19 CLECS?
113 Albersheim Direct, pp. 31, line 16 though 32, line 6. Note that Qwest may make new requests
based upon fiber-based collocations at any tie. (Alberheim Dirct, 25, lines 9-10.)
114 Qwest could use the same notification process it uses to inorm CLECs that Qwest intends to fie
a new request for non-impaied wie center designation(s). See Section V.D of the Settlement
Agreement (Exhbit Qwest-4, pp. 9-10). Note that Qwest has aleady used this process in Idao
even though there is no Settlement Agreement. If Qwest is opposed to the miimal work
requied to report only those wie centers with a cer thshold of the non-impairent
crteria, Qwest could provide line count and fiber-based collocation information for all wie
centers and CLECs could then determe whether any wire centers are close to being requested
for a non-impaired designaton.
Direct Testiony of Douglas Denney Page 74
Denney,Di
Joint CLECs, Intervemors
1 A.
2
3
4
5
6
7
S
9
10
11
12
13
14 Q.
15
16 A.
17
18
19
Case No. QWE- T -OS-07
May 22, 2009
The taffed rates Qwest ha proposed to charge for delisted UNs are
signficantly higher than the UN rates. For example, the curent DSI UN
transport rate is $26.99 for ten miles of trportYs The correspondig rate
from Qwest's interstate access taff for ten miles of tranport is $252.00,i6
more than nie times the UN rate. Signficant changes in costs wil afect
CLECs' profitabilty and thus their business plans. Collocation builds are
expensive and tie consumg. CLECs have limited capita dollar to deploy
to expandig their markets in Idaho and these dollar must be used wisely and
put to what is expected to be their most effcient use. Uncertty as to futue
UN availabilty will deter CLEC investent in facilties. Providig CLECs
with information on the status of wie centers with respect to business access
lines and fiber-based numbers will allow them rationaly to plan futue
investment.
IS INORMTION CLECS AR REQUESTINGTHE
CONFIDENTIA ?
No. For ths notification process, specific line count totas by CLEC or
identification of fiber-based collocators is not requid. The only requiment
is aggregate information for cert wie centers. In addition, Qwest aleady
makes available its switched business line counts by wire center on its
l1S
See Secton 9.6.1 of Qwest's SGAT Exhbit A. The ras ar $24.69 fied plus $0.23 per mile.
Note, the same rates are contaed in the Exhbit A for Qwests negotiations template. These
rates were approved by the Commission in docket QWE- T -01-11.
116 See FCC Tarff#l, Secton 17.2.11.C.1.a
(htt://taiffs.gwest.com:8000/idc/groups/public/documents/tafffcc 1 sO l7p08l.pdfPage= 10&
PageMode=bookmarks).
Direct Testiony of Douglas Denney Page 75
Denney,Di
Joint CLECs, Interernors
1
Case No. QWE-T-OS-07
May 22, 2009
website.117 These lines are used in par to determe whether Qwest meets the
FCC's non-impaient thesholds.lls There is no reason that tota switched2
3 business lines would be proprieta while Qwest s switched business lines are
4 not. Furer, CLECs are only requestig that Qwest indicate those wire
5 centers withn 5,000 business lines of reaching a non-impairment designation.
6 Q.COULD CLECS USE INORMTION TO ALTER BUSINSS PLANS
7 TO ASSUR THAT A WIRE CENTER IS NOT DESIGNATED AS
S NON-IMPAID IN THE FUTUR?
9 A.No. This arguent does not make sense. First, if a CLEC were to attempt to
10 do ths, it would mean restraig from competing in a wie center. Qwest
11 would be the beneficiar of any reduction in competition. For CLECs
12 competition and wig customers is the key to success. CLECs can't game
13 the system by failing to compete - ths is how CLECs lose. Second, CLECs
14 do not operate in the competitive environment as a single entity, but as
15 competitors.119 If one CLEC were to pull back, another CLEC would likely
16 step in. Finly, notification regardig wire centers near non-impaient
17 thesholds would likely spur investment and competition in that wie center.
is A CLEC could invest in a collocation or become a fiber-based collocator in
117 htt://www.gwest.comlcgi-biniconniconncentraloffce.pl?fuction=3 .
lIS Qwest's switched business lines are only par of the equation, and thus alone canot be used
reliably by CLECs to determine what wire centers have the gratest potential for becomig non-
impaied.
119 Qwest identified a number of CLECs doing business in the Boise Mai and Boise West wire
centers. See Highy Confidential Exhibit Qwest-5 and Highy Confdential Exhibit Qwest-l O.
Direct Testimony of Douglas Denney Page 76
Denney,Di
Joint CLECs, Interverors
Case No. QWE-T-08-07
May 22, 2009
1 order to provide itself some protection from the dramatic price increases it
2 would face if it remaied wholly dependent upon Qwest's network.
3 Q.HAVE AN OTHER QWEST STATES REQUID QWEST TO
4 PROVIE TmS TYPE OF INFORMTION TO CLECS?
5 A.Yes. The Colorado Commission upheld its ALJ fidig tht Qwest should
6 provide notice to CLECs as wie centers near a non-impaient theshold.
120
7 The ALJ in Colorado found,
8
9
10
11
12
13
14
15
16
Changes in costs will affect CLECs' business plan. Collocation
builds are expensive and time consumg. The expected retu from a
collocation will be dramatically lower if high-capacity loops, UNEs, or
UN tranport were suddenly to become unvailable. Uncertaity as
to futue UNE availability will also afect CLEC investment in
facilties. Providig CLECs with inormation on the statu of wie
centers with respect to business access lines and fiber-based numbers
will allow them the maximum opportty to rationaly plan futue
investment. 121
17
is BEFORE A REQUEST FOR A NON-IMPAINT DESIGNATION, QWEST
19 SHOULD NOTIFY CLECS OF ITS INENT TO RELY UPON BOTH THE
20 CLECS FIBER-BASED COLLOCATION AN THE CLECS BUSINSS LIN
21 COUNTS
22 Q.SEPARTE FROM THE NON-EVIDENTIAY FIVE-STATE
23 SETTLEMENT AGREEMENT, HAS QWEST AGREED TO PROVIDE
NOTICE TO CLECS IF IT INENDS TO RELY UPON A CLEC'S24
25 FffER-BASED COLLOCATION IN ORDER TO REQUEST A WI
26 CENTER NON-IMPAIRMNT DESIGNATION?
120 Colorado Wire Center Docket, Colorao Order on Exceptions, , 66. Th order is attched to
th testimony as par of Exhbit 202.
121
Colorado Wire Center Docket, Recommended Order of the ALJ, , 121. This order is atthed
to this testimony as par of Exhibit 202.
Direct Testiony of Douglas Denney Page 77
Denney,Di
Joint CLECs, Interemors
1 A.
2
3
4
5
6
7
8
9
10 Q.
11
12
13
14 A.
15
16
17
18
19
20
21
Case No. QWE-T-08-07
May 22, 2009
Yes.122 Providing CLECs with an opportty to review, and either confirm
or dispute their status as a fiber-based collocator is crucial in the process for
determg futue non-impaied wire center designations. Based on
responses provided by CLECs in other states, Qwest has revised its fiber-
based collocation count. 123 Previously, in section IV of ths testimony, I
discussed some of the problems with Qwest s curent notification process.
These problems were that it was unclear as to who Qwest chooses to send its
notice and tht Qwest undertook no effort to follow up with CLECs to receive
a response verifyg or denyig its statu as a fiber-based collocator.
IF THERE AR PROBLEMS WITH QWEST'S CURNT
NOTIFICATION REGARING THE USE OF FIBER-BASED
COLLOCATION INORMTION, WH DO YOU RECOMMND
EXPANING TIDS NOTIFICATION TO BUSINSS LIN COUNS?
As discussed, providing CLEC with notice tht its data is being relied upon is
importt. Ths gives CLECs an incentive to parcipate in the case,
understad that their customers may be impacted by a change in a wire centers
non-impairment designation, and potentially provide inormation that can
narow disputes regardig futue designations. The Joint CLEC concerns
about the process ha to do with Qwest s lack of effort in soliciting a
response, rather than with the concept of providig notification. In response
to the issues identied, the Joint CLECs recommend (l) that Qwest expand
122 Torrence Direct, p. 18, lines 6-11.
123 The specific responses are confidentiaL.
Direct Testiony of Douglas Denney Page 78
Denney,Di
Joint CLECs, Intervemors
Case No. QWE- T -OS-07
May 22, 2009
1 the list of individuas at a company to whom it provides notice that it intends
2 to rely upon a CLEC's fiber-based collocation by including at least the
3 contacts identified by each carer for interconnection agreement notices and
4 those on the service list in wie center proceedings if a proceedig is pending;
5 and (2) Qwest send a follow up notice to the CLEC if it fails to receive a
6 response verifying or disputing tht it is a fiber-based collocator.
7 As with the fiber-based collocation notice, notifyng CLECs that Qwest
8 intends to rely upon their business line counts may encourage CLEC
9 paricipation and help naow futue disputes. For example, each CLEC only
10 has the abilty to review Qwest's count of its own business line count data
11 CLECs are not provided with the naes of other carers doing business in a
12 wire center. Allowig other CLECs to know that their information is being
13 relied upon and specifically what inormation is being relied upon (Le. that
14 CLECs specifc line counts) may faciltate review of Qwest s data and lead to
15 fewer disputes and quicker resolution of Qwest s futue requests for non-
16 impairment designations.
17 VI.CONCLUSION
18 Q.WHT AR YOUR RECOMMNDATIONS TO THE IDAHO
19 COMMSSION?
20 A.Ths Commission should only decide on the non-impaied statu of Boise
21 Main and Boise West. Based on review of the supportg inormation
Direct Testimony of Douglas Deney Page 79
Denney,Di
Joint CLECs, Intervemors
1
Case No. QWE- T -OS-07
May 22, 2009
provided by Qwest, the Joint CLECs curently do not dispute124 tht Boise
2 Mai and Boise West have the mium number of fiber-based collocators to
3 be classified as Tier 1 and Tier 2 respectively. The only remaig non-
4 impaied designtion at dispute is DS3 Loop non-impairment in Boise Main.
5 DS3 loop non-impaient is dependent upon switched business line counts in
6 tht wire center. Qwest has improperly counted switched business lines.
7 First, because Qwest did not make its request for DS3 non-impaient until
S its April 17, 2009 testimony, Qwest should have relied upon end of year 2008
9 switched business line counts rather th end of year 2007. Second, Qwest
10 improperly counts CLEC loops by including residential loops and non-
11 switched capacity (both used and unused) in its CLEC switched business line
12 counts. Thd, Integra was unble to verify Qwest s Integra specific switched
13 business line counts and as of the filing of ths testimony ha signficant
14 discrepancies between its data and the data Qwest provided. One example is
15 tht Qwest identifies a number of EEL circuits being purchased by Integra
16 serving customers in the Boise Mai wie center, despite the fact that Integra
17 does not use EELs to serve these customers.
is The Commssion should reject Qwest's request to classify the Boise Main
19 wie center as non-impaied for DS3 loops.
20 Qwest's testiony largely improperly relies upon a Five-State Settlement
21 Agreement (not including Idao) negotiated by CLECs in 2007, and Qwest
124 Integra may update its position based on the testimony of other pares in ths docket.
Direct Testiony of Douglas Denney Page 80
Denney,Di
Joint CLECs, Interverors
Case No. QWE-T-08-07
May 22, 2009
1 fails to provide independent testiony in support of its positions. Qwest s
2 reliance upon the Five-State Settlement Agreement as evidence is contrar to
3 the commtment that Qwest made in tht ageement, which reduces
4 confdence in Qwest s futue aderence to the agreement. That agreement
5 specifically provides tht (1) it was a settlement of controversy; (2) does not
6 represent the positions a par may tae in jursdictions outside of the
agreement; and (3) tht the agreement is not to be used as evidence.
125 Ths7
S Commssion need not rue on the issues raised in the Five-State Settlement
9 Agreement, as CLECs and Qwest may negotiate and, if necessar arbitrate,
10 these issues as par of their interconnection agreements.
11 If the Commssion nonetheless considers the Five-State Settlement Agreement
12 over CLEC objection, there are a number of issues, contaned in the Five-State
13 Settlement Agreement, that can be improved upon. The tranition period of
14 90 days is too short to actuly tranition impacted facilties. The Joint
15 CLECs recommend a transition period of six months or, if multiple non-
16 impaient designtions are determed simultaeously, one year. The FCC
17 used a one-year trsition period in the TRRO and a six-month transition in
18 the Omaha Forbearance Order.
19 Conversions from UNs to Qwest alterntive facilties are with ths
20 Commission's jursdiction. These conversions are done for the benefit of
21 Qwest.
125 Settlement Agreement, Section VII.B.
Direct Testiony of Douglas Denney Page SI
Denney,Di
Joint CLECs, Intervemors
Case No. QWE-T-08-07
May 22, 2009
1 Conversions should be seamess to the CLEC End User Customer. A
2 conversion involves re-pricing a facilty - a facilty that is operational and
3 serving an End User Customer - from UN prices to the price of the
4 alterntive/analogous servce, and it should not involve any work tht would
5 result in servce disruption for the End User Customer. Qwest and its
6 customers do not bear any risk of disruption or costs from conversions
7 because Qwest does not convert its circuits. Qwest should not be allowed to
8 place the CLEC's end-user customer at risk, for the convenience of Qwest, by
9 chaging the circuit il on UN circuits impacted by the "non-impaient"
10 determation. In addition, Qwest should not be allowed to charge CLECs for
11 Qwest to perform taks that Qwest is performing for its own benefit.
12 Because Qwest is reviewig its own data on at least an anual basis to
13 determe whether additional wie centers meet the FCC's non-impaient
14 thesholds, Qwest should provide inormation to CLECs regardig wie
15 centers that are near a non-impaied theshold. Qwest should notify CLECs
16 anualy of all wie centers with 5,000 business lines of 24,000, 38,000 or
17 60,000 switched business lines. In addition, Qwest should notify CLECs of
18 wie centers withn one fiber-based collocation of reachig Tier 2 status. By
19 providing ths inormation, both Qwest and CLECs will have access to similar
20 market inormation regarding the potential for futue non-impairment and
21 CLECs will be able to tae into account ths inormation in formulating their
22 business plan, as Qwest can do today.
Direct Testiony of Douglas Denney Page 82
Denney,Di
Joint CLECs, Intervemors
Case No. QWE- T -oS-07
May 22, 2009
1 Qwest has agreed in testimony to provide notice to CLECs, and the
2 opportty for CLECs to dispute, when Qwest relies upon its belief tht a
3 CLEC ha a fiber-based collocation in an offce tht Qwest plans to request a
4 change in its non-impaired designation. First, Qwest should improve ths
5 process to ensure that the proper individuas at a CLEC are inormed of
6 Qwest s reliance on its collocation. Ths can be done by sending the notice to
7 at least those persons identified by a carer for receivig interconnection
8 agreement notices and persons on the service list in pending wie center
9 proceedings. Second, Qwest should also inform CLECs when it intends to
10 rely upon CLEC switched business lines, and the line counts it is relying
11 upon, as par of a request for a change in a non-impairment designation. Ths
12 will assure that CLECs are inormed of Qwest s reliance upon their data and
13 increase the likelihood that a CLEC will review its own data upon which
14 Qwest relies.
15 Q.DOES TIDS CONCLUDE YOUR TESTIMONY?
16 A.Yes.
Direct Testimony ofDoug1as Denney Page 83
Denney,Di
Joint CLECs, Intervemors
1
1 BEFORE THE PUBLIC UTILITIES COMMISSION
2 STATE OF COLORAO
3 DOCKT NO. 06M-080T
4 --- ---- - - - - -- -- -- - - - - - -- - - - - - - - - - - ---- - -- -- - - - - - -- -- ---
5 REPORTER'S TRASCRIPT VOLUM I
6 - - - - - - - --------- - -- - - - -- - -- -- -- - - - -- - --- - -- - - - -- - -- -- --
7 IN THE MATTER OF THE JOINT COMPETITIVE LOCA EXCHAGE
8 CAIERS' REQUEST REGAING THE STATUS OF IMPAIRMNT IN
9 QWEST CORPORATION'S WIRE CENTERS AN THE APPLICAILITY
10 OF THE FEDERA COMMICATION COMMISSION'S TRIENNIAL
11 REVIEW RE ORDER.
12 - - -- - - - - - - -- --- - -- - - - ---- - - -- - - - - - -- - - - -- - - - - - -- - - - ----
13 PURUANT TO NOTICE to all parties in
14 interest, the above-entitled matter came on for hearing
15 before G. HAIS ADAM, Adnistrative Law Judge of the
16 Pulic Utilities Commssion, on August 21, 2007, at
17 9:00 a.m., at 1560 Broadway, Suite 250, Denver,
18 Colorado; said proceedings having been reported in
19 shorthand by
20 Reporter.
21
22 had:
23
24
James L. Mîdyett, Certified Shorthand
WHREUPON, the following proceedings were
25
Exhibit No. 201
Case No. QWE-T-08-07
D. Denney, Joint CLECs
6
1 Greg Diamond, appearing on behalf of Covad.
2 MR. WATKINS: Good morning, Gene Watkins
3 and Mary Tribby and our expert, Doug Darnell, on behalf
4 of Cbeyond.
5 A.L. J. ADAM: Okay. I don't know if the
6 parties have discussed any proposed order or anything
7 of the nature. The motion was filed by Covad,
8 Eschelon, McLeod, XO, and Qwest.
9 And I have that the only parties filing
10 opposition to the motion or response to the motion is
11 Cbeyond and staff. So--
12 MR. McGA: Your Honor, may I begin?
13 A.L.J. ADAM: You may.
14 MR. McGA: Thank you.
15
16
I thought it might be --
A. L. J. ADAM: I'm sorry, Mr. McGann, I
17 should mention -- that's another reminder.
18 First, the proceedings are being webcast.
19 If you should approach any confidential informtion
20 that's not appropriate to be webcast, please stop and
21 let me know so we can deal with that.
22 Aiso, in order for your -- you to be
23 heard on the PA system as well as the Webcast, the
24 green light needs to be on on your microphone. And
25 there is a button that says, Push, to turn that on.
Exhibit No. 201
Case No. QWE-T-08-07
D. Denney, Joint CLECs
7
1 I have to apologize for my interruption.
2 Mr. McGann.
3 MR. McGA: No problem at all.
4 I thought it might be good for Qwest as
5 one of the moving parties to do a couple of things, at
6 least explain exactly the relief that the moving
7 parties are requesting and then perhaps place the
8 relief we are requesting in some context in terms of
9 the objections or the comments that have been filed in
10 response to our motion for approval of the settlement.
11 So if I can, let me just begin by saying,
12 staff raised a very good point in their comments, which
13 is, What exactly is the relief that the moving parties
14 are asking for? Are the moving parties simply asking
15 for approval of this settlement agreement only with
16 respect to the signa tory parties or are the moving
17 parties asking for approval of this settlement
18 agreemnt so that it would apply to all CLECs in the
19 state of Colorado? And the answer to the question is,
20 we are only asking for approval of this settlemnt
21 agreement with respect to the parties that have
22 executed the settlement agreement.
23 Not only that, it has been made clear to
24 me in my discussions with the settling parties over the
25 past couple of days that any effort by a settling party
Exhibit No. 201
Case No. QWE-T-08-07
D. Denney, Joint CLECs
8
1 to assert that the agreemnt should be applied to a
2 CLEC that is not a signing party would be viewed as a
3 breach of the settlement agreement. And I refer
4 specifically to Section VII-B of the settlement
5 agreement. Furthe~ore, any effort by a settling party
6 to use the settlemnt agreemnt as evidence .or as
7 precedence in any Commssion proceeding would also be
8 viewed as a breach of VII-B in the settlement
9 agreement.
10 Now, VII-B provides that the agreement is
11 a settlement of controversy, no precedent is
12 established; the agreemnts is for settlemnt purposes
13 only. It shall not be used as evidence or for
14 impeachment in any proceeding before the Commssion or
15 any other admnistrative or judicial body except for
16 future enforcement.
1 7 So I think tha t 's a critical piece of
18 inform tion to have, because I think tha t answers one
19 of staff's critical threshold questions with respect to
20 the settlement, which is, Who does it apply to? It
21 only applies to the signa tory parties.
22 That then goes to one of the threshold
23 questions,in my mind,that's in staff's commnts,
24 which is,If that's the case,has what,in staff's
25 view,is one of the central purposes of the docket
Exhibit No. 201
Case No. QWE-T-08-07
D. Denney, Joint CLECs
9
1 has that been addressed by the settlement agreement?
2 And that is that the relief -- that the docket should
3 be used essentially to determne not only the wire
4 center impai~ent or non-impai~ent designations for
5 the current docket, but how we're going to treat future
6 wire-center-impairmnt decisions. And I think --
7 again, I think it's critical, for purposes of this
8 hearing, that we understand that the settling parties
9 are only seeking approval of the agreement as to them
10 and they are not seeking approval of the agreement or
11 the imposition of those term on any other party.
12 I would like to stop there, just to make
13 sure that the other -- the attorneys for the other
14 settling parties agree with my statement up to this
15 point in time.
16 A.L. J. ADAM: Okay.
17 MR. PEÑA: Your Honor, that is a fair
18 statement, I believe, of the joint CLECs. The
19 settlement specifically addesses only the joint CLECs
20 and Qwest. It does not bind any other CLEC. So I
21 would concur with the commnts Mr. McGann just made.
22
23
MR. McGA: Thank you, Your Honor.
May I continue?
24 A. L. J. ADAM: Are you going to leave
25 that topic?
Exhibit No. 201
Case No. QWE-T-08-07
D. Denney, Joint CLECs
195
1 A I believe it's notwithstanding what's
2 contained in Section 252, but I don't have the Act.
3 Q One way or the other, you are relying on
4 a provision within the Act that says the parties can
5 agree to other things, outside of whatever the other
6 provision is, 251 or 252?
7 A Tha t 's correct.
8 Q All right.
9 Is it your understanding that that also
10 allows the parties to agree to agree amongst themselves
11 to violate the FCC rules?
12 A I believe that's pretty -- the agreement
13 is pretty broad in te~s of negotiating interconnection
14 agreemnts and would allow -- you know, would allow
15 parties I mean, gives parties leeway with that.
16 Q Is it your opinion that the settlement
17 provisions related to business line counts is
18 consistent with the FCC's rules on how that should be
19 done?
20 A I mean, you know, as Mr. Brigham
21 explained, there is different advocacy in the case.
22 The settlement was a settlement of controversy. We do
23 not agree that the settlemnt matches with our reading
24 of the FCC's rules, but we believe we have the right to
25 enter into a -- enter into a settlemnt under 252.
Exhibit No. 201
Case No. QWE-T-08-07
D. Denney, Joint CLECs
196
1 Q Is it your opinion that the settlement
2 methodology, with regards to counting non-switched
3 services rela ted to ONs, complies with the FCC's rule
4 on business line count methodologies?
5 A My testimony in the case is different
6 than what the settlemnt provides for. The settlement
7 is a settlemnt of controversy.
8 Q Is that a no?
9 A It's -- to say that it complies -- I
10 mean, I can't sit here and say that I agree that it
11 complies with the rules because I have a different
12 reading of what that rule is. I do think this
13 settlement is legitimte and the parties allowed to
14 enter into that under 252, and those types of actions
15 take place.
16 Q Do you believe that the settlemnt's
17 treatmnt, counting non-channelized loops as if they
18 are channelized, is consistent with the FCC rules on
19 how to count business lines?
20
21
A For loops, did you ask?
Q Loops that are non-channelized
22 counting them as channelized; is that consistent with
23 the FCC rules on business line definitions?
24 A I would give the sam answer that I gave
25 before. I mean, as we --
Exhibit No. 201
Case No. QWE-T-08-07
D. Denney, Joint CLECs
197
1 Q Is that a no?
2 A It's a no with a qualification.
3 Q Please
4 A I personally didn't address the question
5 of channelization in testimony in this case. You know,
6 we talked about whether switched lines on loop
7 facilities should be counted or should not. Our
8 advocacy in the case is different than the ter.s that
9 we've offered up for settlemnt.
10 Q I believe you said you disagreed with the
11 way that the settlemnt treats the business line model,
12 as regards to the rule; but you were allowed to get
13 into that because the Act allows you to; do you agree,
14 outside of the FCC rules -- is that an accurate sumry
15 of your position?
16 A I don't disagree with the settlement.
17 We're here to support the settlement and ask the
18 Commssion to approve the settlement as between the
19 parties of the settlement. So that first part of your
20 question, I don't -- I don't agree with the setup of
21 that question. But I agree that the settlement is
22 different than my advocacy in the case. And if I were
23 to do the case again, my advocacy in the case wouldn't
24 change. And my advocacy in the case is based on my
25 reading of the FCC rules.
Exhibit No. 201
Case No. QWE-T-08-07
D. Denney, Joint CLECs
198
1 So if you are asking if there is an
2 inconsistency between my advocacy in the case and what
3 the joint CLECs set on with Qwest, yes, there are
4 differences.
5
6
Q Do you recall Demonstrative Exhibit C?
A Yes.
7 Q Do you believe, in your opinion, based on
8 the fiber-based -- based on the business-line
9 definition, that counting that channelized OSl as 1 is
10 correct?
11 A. L. J. ADAM: Let me interrupt, Exhibit
12 C is not in the record now.
13 MR. WATKINS: I apologize, Your Honor.
A. L. J. ADAM: So let's not refer to the14
15 exhibit. You can ask him questions --
16 BY MR. WATKINS:
17 Q Should a non-channelized OSl, be counted
18 as 24, 1, or 0, in your opinion?
19 A I mean, as advocacy in the case, we would
20 have advocated that would be counted as zero.
21 Q Why?
22 A There is no switched lines on that --
23 Q To the --
24 A on that OSl.
25 Q To the extent the Commssion decides that
Exhibit No. 201
Case No. QWE-T-08-07
D. Denney, Joint CLECs
Decision No. C08-0969
BEFORE TH PUBLIC UTIITIS COMMSSION OF THE STATE OF COLORAO
DOCKET NO. 06M-080T
IN THE MATTER OF TH JOIN COMPETITIV LOCAL EXCHAGE CARRS'
REQUEST REGARING TH STATUS OF IMAINT IN QWEST CORPORATION'S
WI CENTERS AN TH APPLICABILIT OF TH FEDERA COMMCATIONS
COMMSSION'S TRINN REVIW REMA ORDER.
RECOMMNDED DECISION OF
ADMISTRTIV LAW JUGE
G HAS ADAMSDETERMG IN LIST OF NON~IMAID WI
CENTERS AN APPROVIG SETTLEMENT IN PART
(PUBLIC VERSION)
Mailed Date: Februar 19,2008
TABLE OF CONTENTS
i. STATEMENT...........................................................................................................................2
II. FININGS AN CONCLUSIONS .........................................................................................5
A. Introduction of Witnesses ................................................... ................ ...............................5
B. Impairent Defition ... ................ ......... ..................................................... ......... .............5
C. Unopposed Impairent Designations ............ ....................................... ............................7
D. Fiber-Based Collocators ....................................................................................................9
a. Discussion ............................................................................ ................ .............11
E. Number of Business Lines...............................................................................................13
1. Discussion of Business Line Calculation.................................................................15
2. Proxy for Business UN-P lines ..............................................................................17
a. Discussion .........................................................................................................19
3. Inclusion of Residential Lines and Non-Switched Lines among UN loops ..........21
a. Discussion .............................................................................. ........... ................21
F. Inclusion of EELs Among UN Lops ...........................................................................25
G. Vintage of ARS Data..................................................................................................26
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
Before the Public Utilities Commission of the State of Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
1. Discussion ........................................................ ..................................... ............28
H. Traition ofUNs in Non-Impaied Wire Centers........................................................30
1. Costs for UN-P Conversion in Non-Impaied Wire Centes .................................30
a. Discussion .........................................................................................................35
2. CLEC Notice ............................................................................................................35
a. Discussion ............. ............................................................................................38
3. Blockig of Orders............................................................... ....................................41
a. Discussion ...................... ...................................................................... .............42
I. Futue Proceedigs for Determtion ofImpairent ....................................................43
1. Discussion of the Natue of Futue Proceedigs......................................................49
2. Discussion of Protective Order ................................................................................52
J. Oter Issues .....................................................................................................................53
m. STIULATION FININGS AN CONCLUSIONS ............................................................54
A. Statement ...................................................................... ...................................................54
B. Settlement Agreement .....................................................................................................57
1. Line Counts ....................................................... .......................................................60
2. Collocation .................................................................. .............................................63
3. Subsequent Proceedigs...........................................................................................64
4. Overall Considerations ............ .................................................................................67
5. Cbeyond ...................................................................................................................69
N. ORDER...................................................................................................................................76
A. The Commssion Orders That: ........................................................................................76
I. STATEMENT
1. By Decision No. C06-0161, the Commssion opened this docket for the purse
of providig insight into the development of a list of non-impaired wie center in Qwest
Corporation's (Qwest) servg terrtory and the underlyig data used to develop and update tht
list.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
2
Before the Public Utilities Commission of the State of Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
2. Inormtion derived from this docket is anticipated to be used to address issues
arsing from the Feder Communcations Commssion's (FCC) Trienal Review Remad
Order! (TRO) and the impaient anlysis used to determe in which of Qwests wie center
competitive local exchange carer (CLECs) wil contiue to be able to purchae high-capacity
unbundled loops and in which they will not. See Decision No. C06-016L.
3. The matt was referred to an adnistrtive law judge (ALJ) for disposition
durg the Commssion's Weekly Meetig held March 8, 2006.
4. By Decision No. R06-0279-I, additional notice of the proceedig was ordered and
the tie period for intervention was established. The Commssion sered notice of ths
proceeg, includig the deae to intervene, upon al active competitive local exchage
providers and those on the Commssion's mail list for telecommuncations inteested pares. See
Decision No. R06-0279-I.
5. On April 10, 2006, tiely notices of intervention were filed by Covad
Communcations Company (Covad); Eschelon Telecom of Colorao, Inc. (Eschelon);
McLeodUSA Telecommuncations Servces, Inc. (McLeod); XO Communcations Serces, Inc.
(XO) (Covad, Eschelon, McLeod, and XO wi collecvely be refered to as Joint CLECs); and
Cbeyond Communcations, LLC (Cbeyond).
6. On April to, 2006, the Offce of Consumer Counel (OCC) filed its Notice of
Intervention of Right and Entr of Appearce.
i In re Unbundled Access to Network Elements, FCC 04290, WC Docket No. 04-313 and CC Docket
No. 01-338, Order on Remad, ret Feb. 4, 2005.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
3
Before the Publie Utiities Commission of the State of Colorado
Deeision No. COB-0969 DOCKET NO. 06M-OBOT
7. On April 10, 2006, Sta of the Commssion (Staft :tled its Notice of Inteention
by Staff~ Entr of Appearce~ Notice Puuat to Rule 1007(a) and Rule 1403(b) and Request
for Hearg in ths matter.
8. By Decision No. R06-0406-I~ all pares were ordered to identify the fact and
legal issues for hearg~ includig the ultite issues of relief sought.
9. Afer modification~ the procedur order goverg the docket was suspended.
See Decision No. R06-0890-I. By Decision No. R06-1113-I~ the suspension was liftd, the
procedurl schedule was modified, and a new hearg was scheduled. Afr fuer
modifications to the procedurl schedule, a prehearg conference was conducte on Janua 17 ~
2007. Decision No. R06-1486-I. By Decision No. R07-0054-I~ a new procedur schedule was
established and a hearg was scheduled.
10. At the assigned tie and place~ the heag was caled to order.
11. Dug the coure of the hearg~ no ora testiony was offered Exhbits 1
though 20 were admtted upon the joint unopposed stipulation of all pares appearg and cross-
examtion was waived. Exhbits 3~ 5, 9, 11~ 16~ and 18 were adtted as confdential exhbits.
Portons of Exhbits 3, 9~ 16, and 18 are designte as Highy Confdential. Those Highy
Confdential portons rema subject to the protections provided by Decision No. R06-0406-I.
Exhbit 20 was adtted without objection as a latefied exhbit fied onApril9~ 2007.
12. On May 14~ 2007~ Statements of Position were fied by Qwest, Joint CLECs, and
Staff. At the conclusion of the motions hearg (addressed below)~ a deadine was established for
the fiing of reply statements of position. Reply stateents were fied by Qwest, Joint CLECs~
Cbyond, and Sta.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
4
Before the Public Utiities Commission of the State of Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
13. On May 14,2007, Qwest filed a Motion for Leave to File Statement of Position in
Excess of Th Pages. No response was fied. Good cause havig been shown for the
unopposed request, it will be grted.
14. Pusuat to § 40-6-109, C.R.S., the ALJ trmits to the Commssion the record
of ths proceedig, ths recommended decision contag fidigs of fact and conclusions
thereon, and a recommended order.
II. FIINGS AN CONCLUSIONS
A. Introduction of Witnesses
15. Ms. Renee Albersheim is employed by Qwest Servces Corporation as a Staff
Advocate.
16. Mr. Rober Brigham is a Staff Director in Qwests Public Policy Deparent.
17. Mr. David L. Teitzl is a Staff Director in Qwests Public Policy Deparent.
18. Ms. Theresa Milion is a Sta Directr in Qwests Public Policy Deparent.
19. Mr. Douglas Deney is employed by Eschelon Telecom in its legal deparent as
the Director of Costs and Policy.
20. Ms. Lyn Notaan is employed by the State of Colorao, Public Utities
Commssion, as a RatelFincial Analyst, in the Fixed Utiities Division.
B. Impaient Defition
21. The source of the impaient detetion at issue in ths proceedg is
47 U.S.C. § 251(d)(2). The FCC adopted rues effective March 15, 2005, imsing unbundlg
obligations only in those situtions where carers are genuiely "impaied without access to
parcular network elements and where unbundlg does not frtrte sustaable, facilties-based
competition." TRO at , 2. In adoptig impaient thesholds, the FCC stated the intention to
Exhibit No. 202
Case No. QWE-T-OB-07
D. Denney, Joint CLECs
5
Before the Public Utilties Commission of the State of Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
drw reasonable inerences regardig the prospect for competition in one geogrphic maket based on
the state of competition in other, simar makets. TRO at' 5. It ha bee recogn tht the selection
of specific critera is not an exac science. TRO at' 169.
22. The FCC found "a corrlation between the number of business lies and/or fiber
collocations in a wi cetter and a revenue opportty sufcient to lead to facilties duplication in the
geogrphic area served via tht wi center. In light of these corrlations, we (FCC) drw inerences,
based on competitive deployment in cert make, regardig the lieliood of competitive entr in
other makets exhbitig simar charitics." TRO at' 43.
23. For providig unbundled access to dedicated interoffce trport and high-
capacity loops, access obligations are based upon route-by-route unbundling requirements for
dedcated interoffce trport dependig on the tota number of business lines2 (i.e., wholesale
and retal) and the number of fiber-based collocators.3 For DS14 and DS3 loops, the FCC
establishes a wie center-by-wie center unbundlig requement based on the number of
business lies and fiber-based collocators in that wie center.
24. The FCC defied tiers for dedcated interoffce trport:
(i) Tier 1 wie center are those incumbent LEC wie cente tht conta at least
four fiber-based collocators, at least 38,000 business lies, or both. Tier 1 wie
centers also are those. incubent. LEC tandem switchig locations tht have no
2 47 Code of Federal Regulations (C.F.R.) § 51.5 defies a ''business lie" as: "an incumbent LEC-owned
switched acess line used to sere a business cutomer, wheter by the incubet LEC itslf or by a competitive
LEC that leases the lie frm the incubent LEC."3 47 C.F.R § 51.5 defies a "fiber-based collocr" as: "any carer, uniate with the incubet LEC,
th maitain a colloction argement in an incubet LEC wi cente, with acve electrcal power supply, and
opertes a fiber-optic cable or comparble trssion failty th (1) Termtes at a colloction argeent
with the wie cente; (2) Leaves the incubent LEC wi cete premises; and (3) Is owned by a par other than
the incubent LEC or any afliate of the incumbent LEC, excet as set fort in th pargrph."
4 ilustratively, a DS1 loop might be used to see a midsiz business and a DS3 l00 might be us to
serve an enterie cutomer. Hea Exhbit 19 at 181-182. DS1 and DS3 loos ar genery referd to as high
capacity loos. A DS 1 loop is a digita local loop havig a tota digita sign spe of 1.544 megayt per secnd.
DS 1 loops includ, but ar not lite to, two-wie and four-wi copper loops caable of prvidi high-bit rate
digita subscrber lie serces, includig Tl serces. A DS3 loop is a digitalocloop havig a tota digita signal
sp of 44.736 megabyt per second.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
6
Before the Public Utilities Commission or the State or Colorado
Deeision No. COS-O'"DOCKET NO. 16M-OSOT
lie-side switchig facilties, but nevereless serve as a point of trc
aggregation accessible by competitive LECs....
(ii) Tier 2 wie centers are those incumbent LEC wie centes that are not Tier 1
wie centers, but conta at lea 3 fiber-based collocators, at least 24,000 business
lies, or both. . ..
(ii) Tier 3 wi center are those incumbent LEC wie centers tht do not meet
the crteria for Tier 1 or Tier 2 wie centers.
47 Code of Federal Regulations (C.F.R.) § 5L.319(e)(3).
25. Mr. Denney nicely sumes the hierchy of impaient detertions:
If a wie center ha thee fiber-based collocators, then that wie center is
automatically classified as Tier 2 for trport impaient, and if it has four fiber-
based collocators automatically classifies a wie center as Tier 1 for tranort
impairent. S Wire cente with four fiber-based collocators and the requisite
number of switched business lies (60,000 for DSI loops and 38,000 for DS3
loops) are classified as "non-impaired" with respect to DSI and/or DS3 UN
loops.
Hearg Exhbit 15 at 8-9 (footnote omitted).
C. Unopposed Impairent Designations
26. Qwest requests the Commssion approve a list of non-impaied wie centes in
Colorado prepared under its methodology. Whle there ar issues as to the methodology
addressed below, no par opposes the followig requested impaient designations:
wie center CLLI(8)UN Traport Non-"non-impaied"with
Impairent Tier respect to DS 1 and/or
DS3 UN loops
S In the Matt of Review of Unbudled Access to Network Elements. Revew of Sectin 251 Unbdling
Obligations of Incubent Local Exhange Caer, Order on Remad, CC Docket No. 01-338, WC Docket No. 04
313,20 FCC Rcd 2533, (2004) ("TRO") 1 66. The Tier statu dees the avaabilty ofDSI, DS3 and Dark
Fiber UN trport DSI UN trport is not available between Tier i wi cete. DS3 and Dar Fib UN
trrt is not available beteen wi cente design as Tier i and/or Tier 2. Line counts can alo playa role indeteg the Tier statu of a wie cete and did so for most of the wi cente on Qwests lit for Colora.
Offces with more than 38,000 switch business lines ar classified as Tier I and offces with betwee 24,000 and
38,000 business lies ar clasified as Tier 2.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
7
Before the Public Utilities Commission of the State of Colorado
Decision No. COI-0969 DOCKET NO. 06M-OIOT
Boulder BLDRCOMA Tl
Capitol Hill DNVCOCH Tl
Colorado Sprigs
.
CLCPCOMA Tl
Cus Park DNVCOCP Tl
Denver East DNVCOEA Tl
Denver Mai DNVCOMA Tl DS3
Denver Southeast DNVCOSE T2
Dr Creek DNVCODC Tl DS3
Pikeview CLSPCOPV Tl
Sullivan DNVCOSL Tl
Aberdeen ENWCOAB T2
Arad ARVDCOMA T2
Aurora AURCOMA T2
Denver South DNVCOSO T2
Lakewood LKWDCOMA T2
27. Thus, aside from the applicabilty determtion of parcuar issues and disputes,
disputed issues will only detere in ths proceedig whether the Nortglen wie cente is Tier
2 (Joint CLECs and Sta position) or Tier 1 (Qwest's position) as well as Colorao Sprigs Main
and Denver East DS3 impaient. The uncontested classifications set fort above ar reasonable
and will be adopted by the Commssion.
Exhibit No. 202
Case No. QWE-T-OB-07
D. Denney, Joint CLECs
8
Before the PubUe Utiities Commission of the State of Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
D. Fiber-Based Collocators
28. A fiber-based collocator is:
any carer, unliated with the incumbent LEC, that mata a collocation
arangement in an incumbent LEC wie cente, with active electrcal power
supply, and operates a fiber-optic cable or comparble trmision facilty that
(1) Termtes at a collocation argement with the wie cente;
(2) Leaves the incumbent LEC wie cente premses; and
(3) Is owned by a par other than the incumbent LEC or any afliate of the
incumbent LEC, except as set fort in ths pargrph. Dark fiber obtained from an
incumbent LEC on an indefeasible right of use basis shal be treated as non-
incumbent LEC fiber-optic cable. Two or more affate fiber-based collocators
in a single wie center shal collectively be counted as a single fiber-based
collocator. For puroses of ths pargraph, the term afiate is defied by
47 U.S.C. 153(1) and any relevant interpretation in ths Title.
47 C.F.R. § 51.5.
29. To identify the number of fiber-based collocators on March 15, 2005, Qwest used
collocation trackig and inventory records and billig data coincidig with the December 2003
Automated Reportg Mangement Inormtion System (ARS) data.6 In order to validate ths
inormtion, Qwest incorporate CLEC responses to Qwest's requests for confation of data
and actul field verifications of wie cente.7 Based upon the analysis detaled in Ms. Torrence's
testiony, Qwest contends an accurte and verified list of non-impaid wie center ha been
provided.
30. Mr. Denney chalenges the accurcy of Qwests deteration of the number of
fiber-based collocators and specifcally notes one intace where Qwests field inection
6 ARS data conta the nuber of Qwest re business lines. ARS data is not reort at a wi
cete level; raer, it is reort at a stwide leveL. Heag Exbit 19 at 135. Heag Exhbit 19 at 79. ARS
data would not includ CLEC UN-P lies or loops. Heag Exbit 19 at 137.7 Ms. Torrce descrbes th press in more de at pp. 11-15 of her Di Testony, Heag
Exhbit 2. Qwest's methodology exclud dak fibe and fied wieless providers as fiber-bas collocators.
Torrence at 9-10.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
9
Before the Publie Utilities Commissiou of the State of Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
verfied a fiber collocator in Denver Mai tht was later acknowledged not to exit. In another
instace, Mr. Denney matain tht application of the same methodology in Miesota resulte
in an eror because Eschelon was included as a fiber-based collocator in two wi center when
no power was connecte to its equipment. In another instace, a fiber-based collocator was
counted where the Collocation Vercation Worksheets did not verify the carer's inormtion.
Finally, Mr. Deney mata tht Qwest improperly counte two fiber-based collocators where
the servce of one provide was dependent upon the fiber of the other properly classified
collocator. He contends tht the dependent provider does not meet the FCC's defition of a
fiber-based collocator.
31. Mr. Deney questions the objectivity of Qwest's methodology because it intialy
counted two fiber-based collocators in the Denver Mai wie center that should have only
counted as one. He acknowledged tht Qwest later correcte the mattr af fuer field
verification. He also rased some concer tht do not give rise to fac disputes applicable to
futue deteations, but to matt of tig.
32. Whe Staff generally agrees with Qwest's approach for countig fiber-based
collocators, Staff has concer regardig the validity of the resuts based upon the numbe of
inccuries in Qwest's inventory system and the problems arsing though trition in inventory
systems. Staff remin concered tht Qwest does not validate the accury of data input into
the "COMET" system relied upon for countig the number of fiber based collocators for
determg wie center non-impaient. Based upon the number of dierces between the
two inventory systems, Sta recommends tht Qwest be requied to contiue a detaled physical
verfication of all collocation sites it inteds to rely on to seek designtion of additional non-
impaied wie centers.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
10
Before the Public Utilities Commission of the State of Colorado
Deeision No. COS-O'"DOCKET NO. 06M-OSOT
8.Discussion
33. Though Ms. Torrence's rebuttl testiony, Qwest has shown that the disputed
issues in Miesota do not raise sucient concer about the investigation process applied in
Colorado to negate the probative value of the evidece presented. Ms. Torrence also adequately
addresses the concern rased by Mr. Denney regardig the Boulder Mai wie cente field
verification.
34. The accuracy of Qwests inventory records goes to the burden of persuaion.
Considerg the effec of an impaient determation, the risk of an incorrect determtion,
and Qwests inventory records, it was reasonable for Qwest to attpt CLEC verications of
fiber-based collocations and conduct field verfications of inventory inormtion to demonstrte
the number of fiber-based collocators. Qwests investigation was then subject to review and
discover in ths proceedig. Because the accury of evidence relied upon by the Commssion
is parount, Qwests methodology indicates tht the efforts taen present the best evidence to
the Commssion. The fact tht there is some potential for hum eror that may go uncorrected
though the litigation process does not overome Qwests showig.
35. Sta recommends that the Commssion contiue to requie Qwest to conduct a
detaled physical verication of all collocation sites to support an impaient fidig. The cr
of deterg whether fiber-based collocation impairent thesholds are met is the ready
avaiabilty of accurate, reliable, and verfiable inormation, rather th Qwests historical
inventory methods. The burden is unecte by Qwest's cuent recordkeeping. Stas
recommendation is reasonable and supported by the evidence in ths proceedig. The
recommendation wi be adopte.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
11
Before the Public Utiities Commission of the State of Colorado
Deeision No. C08-0969 DOCKET NO. 06M-080T
36. Regardig whether a CLEC-to-CLEC fiber connection is with the scope of the
FCC's defition of a fiber-based collocator, 47 C.F.R. § 51.5, Qwest provided a Highy
Confdential dicovery response explaig why both CLECs adessed by Mr. Denney were
counted as fiber-based collocators. See Highy Confdetial Exhbit DD-3 to Confdetial
Hearg Exhbit 16. ((*** Highy Confdential Inormation strcken***)) ¡d.
37. In rebutt, Ms. Torrence states tht Qwest believes some CLEC-to-CLEC
connections meet the FCC's defition of a fiber-based collocator." Hearg Exhbit 8 at 16-17.
38. Qwests chactriation in Highy Confdential Exhbit DD-3 to Confdential
Hearg Exhbit 16 at page 6 is contrcted by the Highy Confdential discovery response
quoted above and the FCC's rue. ((*** Highy Confdential Inormtion strcken***)) Highy
Confdential Exhbit DD-3 to Confdential Hearg Exhbit 16. Thus, followig the change, the
collocation of ths parcular CLEC is dependent upon the fiber of the fiber-based collocator in
such a maer that it does not meet the FCC's defition.
39. As recogned in the Report of the Arbitrtor, to theoretically allow for a
permanent non-impairent classification of a wie center based upon one other fiber connection
leavig an incumbent local exchage carer (IEC) wie center would be would be absurd:
if that one tre fiber-based code locator goes banpt (or is acquied by AT&T
(the ILEC)), the only competitive source of fiber-based trport or loops
disappear. It would be absurd to count collocators as Fiber-Based Collocators
when they are themselves dependent on the legitite Fiber-Based Collocator
who actuly operates and tetes the fiber for provision of altete fiber
capacity.
Report of the Arbitrtor in re the Complait of Southweste Bell telephone, L.P., DIB/ A AT&T
Oklahoma Againt Nuvox Communcations of Oklahoma, Inc., Regardig Wire Center UN
Declasification, Cause No. PUD 200600034, Corporation Commssion of the State of
Oklahoma (A copy of ths report is attched to the Notice of Supplementa Authority in
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
12
Before the Public Utilities Commission of the State of Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
Objection to Qwest Corporation's Motion for Orr Approvig Settlement Agreement fied
August 16, 2007).
40. Except for the CLEC-to-CLEC fiber connection in the Denver Ma wie center,
Qwest's methodology, includig a detaed physical verfication of all collocation sites,
demonstrtes that Qwest has objectvely and accurtely detered the number of fiber-based
collocators in each of its wie centers. Qwest's methodology, as modified to be consistet with
ths decision regardig CLEC-to-CLEC connections, will be adopted as wil Staffs
recommendation tht Qwest will be requid to conduct and document physical verification to
support futue impaient detetions.
E. Number of Business Lines.
41. Qwest contends tht the FCC's rues clearly provide that all ILEC lines used to
sere business customer, via retail or wholesale, should be included with the lie count for
each wie center. Furer, the FCC's rues provide that al unbundled network element (U)
loops are included, because they are wholesale servces and the ILEC has no way to determe
the CLEC's use of the lie. Hearg Exhbit 4 at 4. Applyig FCC defitions, Qwest ha
determed that the Nortglenn wie center should be categoried as Tier 1 for non-impaient.
42. Qwest contends that the FCC intended tht ARS data provide the basis for the
business lie analysis by wie center contemplate in the TRO. ARIS data reports Qwests
retil high-capacity business lines in use. Qwest multiplied actu high-capacity digita facilties
shown in its AR report by the appropriate Voice-Gre Equivalent factor to comply with the
FCC's rues. Each 64 kilobit voice-gre equivalent chanel of capacity was calculated for al
high-capacity digita lies (i.e., DSI and DS3 lines). Al UN loops were included without
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
13
Before the Publie Utilities Commission of the State of Colorado
Deeision No. C08-0'6'DOCKET NO. 06M-080T
regard to actu use of the loop. Qwests methodology for countig business lines includes Qwest
reta business lines, al UN loops, and business UN-Platform (U-P) lies.
43. Mr. Denney mata tht Qwests switched business lie counts should be
counted in the same maer as they are counted for ARS 43-08. Citig pargrph 105 of the
TRO, Mr. Deney mata that ARS data properly counts lies in use and that countig
capacity not in use is inconsistent with the intent of the TRO.
44. Staff generlly agrees with countig the voice-gre equivalent of the high-
capacity loop for Qwest business lines; however, Staff contends tht the voice-gre equivalent
multiplier should only be applied to the extent that it actully and accurtely reflects the tre
count of workig voice-grde equivalent lines rather than unused capacity of the high-capacity
loop.
45. Stas arguent is premsed upon the data included in the ARS 43-08 data.
Because the readiy avaiable data available in the ARIS 43-08 report reflects the voice-gre
equivalent retal business workig line count, Staff contends ths data is most appropriate for use
in countig workig voice-grde equivalent lies. Applyig Sta's arguent to the data for
Qwests wie center, Staff deteed tht the Nortglenn wie cente would drop to a Tier 2
designation.
46. In rebutt, Mr. Brigh reitertes the business line defition, 47 C.F.R. § 51.5.
He contends that business line talies are to be adjusted to account for ISDN and other digita
access lines by countig each 64 kbps-equivalent as one lie. Ilustratively, a DS 1 line
corresponds to 24 64 kbps-equivalents, and therefore to 24 business lies.
47. Mr. Brigham concludes that FCC rues defie a "business lie" as used by either
local exchange carer (LECs) or CLECs to sere a customer. Subsection thee specificaly
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
14
Before the Public Utiities Commission of the State of Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
states that "business lies," defied to include both wholesale and retail high - capacity digital
lines, are to be adjusted to reflect the correspondig 64 kbps-equivalent (DSO-chanel) lie
capacity of these serces. The rue specifcally states that a DSI corresponds to 24, 64 kbps-
equivalents.
48. Mr. Brigh conteds tht his position is consistent with the FCC's intent
because if the FCC only intended to include active lines it would have been unecessar for the
implementig rue to requie a DS 1 loop to be counte as 24 64 kbps-equivalent business lies.
"Intead the FCC would have rued tht the ILC should only count 'active chanels' or
chanels 'in use.' The FCC did not do so, however, and expressly rued tht a digital (DS 1 and
DS3) loop should be counted by its tota capacity (24 business lies for a DS 1 loop and
672 business lines (24 DSls * 28) for a DS3 loop)." Hearg Exhbit 10 at 15.
1. Discussion of Business Line Calculation
49. The FCC defied:
A business line is an incumbent LEC-owned switched access line used to serve a
business customer, whether by the incumbent LEC itself or by a competitive LEC
that leases the lie from the incumbent LEC. The number of business lies in a
wie center shal equa the sum of al incumbent LEC business switched access
lies, plus the sum of al UN loops connect to tht wie cente, includig UN
loops provisioned in combintion with other unbundled elements. Among these
requirements, business lie talies:
(1) Shall include only those access lies connectig end-user customers with
incumbent LEC end-offces for switched serces,
(2) Shal not include non-switched special access lies,
(3) Shall acount for ISDN and other digital acess lines by countig each
64 kbps-equivalent as one lie. For exaple, a DSI line corresponds to
24 64 kbps-equivalents, and therfore to 24 "business lines."
47 C.F.R § 51.5.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
15
Before the Public Utilities Commssion of the State of Colorado
Deeision No. C08-0969 DOCKET NO. 06M-080T
50. Pendig matters must be resolved based upon the plai languge of the FCC's
rue, in absence of ambiguty. Ambiguty must be found in the rue, not from extric evidence.
If the plai languge does not resolve any matter, rules of constrction must be applied to
interpret the meang of the rue. Ths does not mea tht ths Commssion should attempt to
drft a new rue consistent with expressions of intet in the TRO. Specifcally, ever clause
and word in the rue should be given effect and meaning;8 varous terms should be read as a
whole, and in their context;9 and a common-sense gude that the plai meang of words should
be given their literal meag uness such meag would defeat the purose of the rue.
10
51. The fist sentence of the rue generaly defies a business lie as a switched
access lie used to sere a business customer. The second sentence defies how business lines
wil be taed on a wie center leveL. The thd sentece applies thee taly modifications. Thus,
business lies are identified and talied by wire cente prior to consideration of the enumerated
modfications.
8 Duncan v. Walke, 533 U.S. 167, 174, 121 S.Ct 2120,2 125 (2001)("It is our duty 'to give effect, if
possible, to ever clae and word of a statu. . . . As ealy as in Bacn's Abrdgment, sect 2, it wa said tht 'a
statute ought, up the whole, to be so constr that, if it ca be prvente no clause, sentece, or word sh be
supeuous, void, or inigncant.' . . . We are thus 'reluct(tJ to treat statury terms as surlusage" in any
settg.''')(citi to United States v. Menache, 348 U.S. 528, 538-539, 75 S.Ct 513, 99 L.Ed. 615 (1955) (quoti
Montclai v. Rall, 107 U.S. 147, 152, 2 S.Ct. 391,27 L.Ed 431 (1883)); see also Wìllia v. Taylor,
529 U.S. 362,40, 120 S.Ct. 1495, 146 L.Ed2d 389 (200) (decrbing ths rue as a "cardi priciple of statutory
constrction"); Market Co. v. Hoffan, 101 U.S. 112, 115 ,25 L.Ed 782 (1879); see also Raftlafv. United States,
510 U.S. 135, 140, 114 S.Ct 655, 126 L.Ed2d 615 (1994)).
9 Nat'l Assoc. of
Home Builders v. Defeners of Wildlife, 127 S.Ct 2518, 2534 (2007)("It is a fudata
canon of statutory constrction tht the word of a statute must be read in their context and with a view to their pla
in the overa statutory scheme.")(quoti FDA v. Brown & Willamon Tobacco Corp., 529 U.S. 120, 132 and
Davi v. Michigan Dept. of Treas, 489 U.S. 803, 809, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989)); see also Kunz v.
United Security Bank, 489 F.3d 1072, 1077 (10t eir. 2007).
10 U.S. v. Ron Pair Enterpries. Inc., 489 U.S. 235, 242 (1989)("The plai meag oflegilation should be
conclusive, except in the 'ra caes (in which J the lite application of a sttute wi prouce a result deontrbly
at od with the intentions of its drrs.''' (citig Griffn v. Oceanic Contractors, Inc., 458 U.S. 564, 571,
102 S.Ct 3245, 3250,73 L.Ed2d 973 (1982)).
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
16
Before the Public Utilities Commission of the State of Colorado
Decision No. COB-O'6'DOCKET NO. 06M-OBOT
52. Hypotheticaly, if a business cutomer uses ten chaels of a DS 1 circut for
switched access lies at one offce, ten business lines wil have been identified and included in
the tally prior to considertion of the modifications of the thd sentence. Because the excess
capacity is not connectig the end-user customer with the ILEC's end offces for switched
servces, the excess capacity is not afecte by the fit modification. The second modification is
not applicable to the hypothetical. Because the 10 business lines are provided over a digital
access line (i.e., the DSI circuit), the thd modification adjusts the taly so that the DSI circuit is
treated as 24 business lies, rather th 10. Whe the excess capacity of the circut in the tally is
clearly not used to provide business lines, the capacity is accounte for as lines, per the
modification.
53. The rue maes no distiction as to the components of the tally modied by the
thd sentence (i.e., all incumbent LEe business switched access lies verus the sum of all UN
loops connecte to tht wie center). The modification does not specify workig lies; rather, it
provides for contr accountig. Therfore, the business lie taes wi be adjusted by the voice-
gre equivalent applied to capacity (i.e., used and unused).
2. Proxy for Business UN.P lies
54. Qwest included UN-P business lines in its wie center business line counts. The
number was estiated because Qwest did not separtely trk residential or business UN-P
lines (they were all trcked as generic wholesale servces). The specific telephone number
associated with each UN-P lie was checked agaist Qwests white pages diectory listigs
database, which includes all tyes of listigs (i.e., listed, non-listed, and non-published). If the
number appeared in the database, it was subtracted from the tota number of UN-P lies,
resultig in an estite of business UN-P lines.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
17
Before the Public Utiities Commission of the State of Colorado
Deeision No. COI-0969 DOCKET NO. 06M-OIOT
55. Mr. Denney contends tht two report from Qwests ¡CONN database cal into
question Qwests count of business lines. One report identifies the tota number of business and
residential loops (workig pair) in serce by wie center. A second reort identifies the number
of business and residence access lies. Simlar to the rationale Qwest relied upon to use the
white pages database, he contends a proxy for business lines is derived by subtrtig residential
lines from the tota number of Qwest loops in servce. See Table 3, Hearg Exhbit 15 at 23.
Whe Mr. Denney does not conted that the Commssion should adopt his methodology for
impairent determtions, he conteds tht the data casts doubt as to the accur of Qwests
methodology.
56. Sta opposes Qwests use of the white pages diectory listigs database to
estite the UN-P business lies because it discovered that actu data is available for the
deteation. Qwest has published gudelines for CLECs to ''regrde'' an end user's service.
Regrg serce allows the end user's serce to change betwee residential serce and
business serce so long as the serce stays with the same product classification. The
Wholesale Interconnecton/Orderg Overvew Regrde Serce gude (Exhibit LMV-6)
specifically provides for regrg of UN-P servces between residential and business servce.
Whle Staff is unure when ths data became available, Qwest ha also requied CLECs to
indicate whether residential or business serce is being provided by the UN-P serce as par of
the Local Serce Request. In any event, Sta conteds tht Qwest must demonstrte tht
accurte data is not available before being allowed to implement use of a proxy or estition of
the data.
57. Mr. Brigh states in rebuttl tht Type of Serce data is not reqd, utiized,
or retaed for biling puroses. Because Qwests existig syste trk lie counts for all
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
18
Before the Public: Utilties Commission of the State of Colorado
Dec:sion No. C08-0969 DOCKET NO. OlM-080T
serces based upon biling records, curent systems wi not allow segregation of UNP lies
between residential and business lies. Whle it is theoreticaly possible to extt such
inormation, Mr. Brigham conteds it would be by maual mean that would be expensive and
tie consumg. Furer, parcularly because UN-P is no longer being ordered, it would not
mae sense to invest in development of a mechaned syste to retreve the inormation. As to
curent products (i.e., QPP), Qwest is aleady capable of segregatig residential and business
quatities.
58. Even if Qwest went though ths manual exercise, Mr. Brigham contends the same
data is aleady utilzed to estiate UN-P line counts based upon the listigs database. He notes
tht ths reasonable methodology was also utilied in the Colorao 271 proceedg.
a. Dis~ussion
59. Qwest does not dispute tht residential UN-P lies should be excluded from the
tay of business UN-P lines. Because Qwest does not have a record of the actu use of the
line, or it would be overly burdensome to maualy retreve such inormation, Qwest proposes to
compare the number associated with UN-P lies to the white pages database in order to
estiate business UN-P lines.
60. One must consider the context and use of the white pages database in other
proceedigs. Ilustratively, Decision No. R02-0318-I addrsses the use of the white pages
database in order for the Commssion to make the subjective deteation of whether CLECs
collectively sered more than a de minimis number of residential and business customers with
the state. Aside from the issue in tht proceedig, the Commssion note that external
inormtion supportd the conclusion and tht the analysis conseratively met applicable
thesholds as applied by other states.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
19
Before the Public Utiities Commission of the State of Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
61. Mr. Brigham explaied tht the field identified by Ms. Notaan deteed
whether the associated number would be included among residential or business listigs. Even if
the specific field was maualy reviewed and compiled, the result would reflect the same
inormtion for residential lies as is reflected in the white pages database.
62. In order to estite the number of business UNP lines, Qwest contends that the
white pages database provides a reasonable approximtion of the number of residential lies to
be removed from the tota UN-P lies connectig to a wi center. Ths methodology goes to
the burden of persuaion. Comparble approaches have been utilized in the past (to a degree) for
estimtes because the database includes all tyes of listigs (i.e., listed, non-listed, and non-
published). Mr. Denney questions the accury of the estiation based upon ICONN
inormtion. Whe Mr. Denney contends tht the ICONN reportg indicates differt
inormtion, he has not shown the ICONN informtion to be any more reliable than Qwests
methodology.
63. Because the data field identified by Sta detees inclusion in the white pages
database, Qwests methodology is indiectly based upon actul data. Mr. Brigh has
adequately shown tht a costly and tie-consumg manua reconstrction would liely conf
Qwests data and estition. Upon ths basis, the methodology will be adopted.
64. The ALJ fids tht the adequay and accury of the estition of business lies
must be considered based on the facts and circutaces. Staff appropriately prefers the use of
actu data over estites. However, it is reasonable to utilize estiates where actu
inormation is theoretically obtaable but overly burdenome to obta, or when the reliabilty of
the estite is demonstrted. The ALJ is conviced that more likely than not, a manual analysis
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
20
Before the Publie Utilities Commission of the State of Colorado
Decision No. COa-0969 DOCKET NO. 06M-OaOT
of historical records would not change the tier designtion based upon the count of business
UN-P lines for the Nortglenn wie cente.
65. Qwest's methodology for identifyg residential UN-P lines though the white
pages database will be adopted and approved for excludig residential lines from the tally of
UN-P business lines.
3. Inclusion of Residential Lines and Non-Switched Lies among UN
loops
66. The Joint CLECs maita tht Qwest ha inated the number of CLEC switched
business lines by includig loops used for residential and non-switched lines tht were leased
from Qwest apar from any UN-P combination. Qwests interetation relies on the reference
to "all UN loops" in the second sentence of the business line defition in 47 C.F.R. § 51.5.
67. Qwest specifically chalenges Mr. Deney's adjustment attptig to remove
actu digita business chanels in serce associated with a wie cente. See Hearg Exhbit 10
at 30. Without acknowledgig the appropriateness of the adjustment, Qwest also proposes an
alterntive methodology. Qwest also contends that Mr. Deney ha not properly counted non-
switched UN loops that he advocates must be removed from the business line counts for the
high-capacity UN Loops.
a. Discussion
68. The second setence of 47 C.F.R. § 51.5 is ambiguous as to the meang of the
phrase "business line" based upon the fit sentence's defition and inclusion of the phre "all
UN loops" in the second sentece. Because "all UN loops" could apply to those loops used
for business and residetial uses, it might appear that ''business lies" in the second sentence is
meant to includ all UN loops without regard to use of the line. Such an interetation is
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
21
Before the Publie Utilties Commission of the State of Colorado
Decision No. COS-096!)DOCKET NO. 06M-OSOT
consistent with Qwest's arguent tht they are not able to detee a CLEC's use of some
loops.
69. On the other had, the fist sentece is clear in its defition of the term ''business
line." Where the FCC's rule is clear and unbiguous, it is not for ths Commssion to interpret
or apply an inconsistent alterntive. Inclusion of residential loops in the count of business lies
in a wie center would impermssibly confct with the fit sentence and would not give meang
to the entie rue. Therefore, business lies in the second sentence must restrct the followig
phre such that all UN loops must be confed with the scope of business lie as defied in
the fit sentence of the pargrph.
70. Ths interpretation is consistent with the fidigs of the Michigan Public Servce
Commssion: "The Commssion fids that the fit sentence of the FCC's rue defig business
lines requies that, to be counted as a business lie, the lie must sere a business customer. The
remaing porton of the defition presumes serg a business customer and clares tht any
loop, whether UN-P, UN-L, or leased line will be counted when it serves a business
customer." In the Matter, on the Commsion's Own Motion, to Commence a Collaborative
Proceedig to Monitor and Faciltate Implementation of Accessible Lett issue by
SBC Michigan and Verion, Case No. U-I447, Order September 20, 2005 at 9 (footnotes
omittd).
71. The FCC declared an intention to defie business lies based upon an objective
set of data tht ILECs aleady have crated for other reguatory puroses. TRO at'¡ 105.
However, despite the statement, it has been shown that the rue othere fails to meet th intet
(i.e., business UN-P). Thus, parcularly in absence of explicit adoption, it canot be
demonstrte tht the FCC intended to include residential UN loops in the impaient anysis.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
22
Before the Public Utities Commission of the State of Colorado
Decision No. COB-0969 DOCKET NO. 06M-OBOT
72. By the TRO languge, it would appear tht the FCC intended Qwest would have
inormtion available to make an impaient detertion because it would be requi to be
reported for other reguatory puroses. Firt, reliance upon ths languge would imperssibly
attmpt to create ambiguty in the rue from the languge of the TRO. Furer, neither the FCC
nor any par has shown historical reportg for UN loops to assist in applyig defied tes in
the rue.
73. Whe other commssions have considered the FCC's analysis of line data to
constre the FCC rue, the record in ths proceedg does not provide the foundation for the
FCC's analysis. Thus, one canot detee if or how the FCC applied the languge of the rue
in its own consideration. The FCC cites the Afdavit of Shelley W. Padgett for the calcuation of
business lies; however, a review of the afdavit does not clar the matt at issue. See TRO
at ,r 105 citing BellSouth Comments, Atth. 4, Afdavit of Shelley W. Padgett (BellSouth
Padgett Ail) at'r 5, FCC, WC Docket No. 04-313 (filed Nov. 1,2004). Ms. Padgett state that
she derived the number of business lines ''by addig the business and coin lie counts frm the
December 2003 43-08 ARIS Report to the UN loop and UN.P business lie counts as of
December 2003." Id. There is no evidence in ths record as to the UN loop data Ms. Padgett
referenced. In any event, the usefuess of such foundational matt is not clear in light of the
FCC's rejection of the specific detals frm tests aplied by commentors. TRO at'r 107.
74. Whle Qwest is not precluded from reliance upon other objectively available data
to support impaient, the TRO laguge canot create ambiguty where it does not exist in the
adopted rue. The FCC's stated rationale could even confct with an unambiguous adopted rue.
Whe the FCC states in the body of its Order tht it expects the data underlyig the business line
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
23
Before the Public Utilities Commission of the State of Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
count to be "readiy available"ii and "created for other reguatory puroses,,,12 it also indicates
tht biling records13 and business UN_p14 are "readly available." The record clearly shows all
necessar inormation is not "readly avaiable" nor "crated for other reguatory puroses" (i.e.,
business UN-P lies).
75. These :fdigs put Qwest in the position of havig to prove a CLEC's use ofUN
loops in order to rely upon such count to support a :fdig of non-impaient. Whle Qwests
curent recordkeeping provides such inormation for futue impaient proceedigs as to 'some
product offergs, Qwest ha no curently identified mean to record use of all UN loops. The
number of business lies in a wie center clearly includes business UN loops and the ALJ
canot :fd any ambiguty along with expressed intent to ignore residential lies or to treat them
as business lies.
76. Apar from Qwest's availabilty of data there is no logical basis for the rue to
exclude residential UN-P lies, but include residential UN loops. In absence of clear
diection from the FCC to the contrar, availabilty of data alone does not provide such a basis.
77. Qwest argues that the CLEC's use of a UN loop was properly ignore beause
there is no differentiation in the FCC's defition based therupon. However, an adjustment was
mae for an Enhced Extended Loop (EEL) so that the loop was counted againt the customer's
wie center.
11 In the Ma of Unbundled Access to Netork Elements; Revew of the Secton 2.51 Unbundlg
Obligations of Incumbent Local Exchae Caer, WC Docket No. 04-313 and CC Docket No. 01-338, Or on
Remd, FCC 04-290 (released Febru 4, 2005) ("TRO"), 1161.
12 TRO, , 105.
13 TRO, , 100, fn 290 (Descrbing fiber-bas colloction inormtion as "readily identifiable" beause
suh data is in the possession of the ILEes both in gener data and in "billg rerds.").
14 TRO, , ios.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
24
Before the Public Utilties Commission of the State of Colorado
Decision No. C08-09"DOCKET NO. 06M-080T
78. As concluded above, Qwest's arguent tht the FCC defition fails to
dierentiate business and persona lies confcts with the defition of business line provided in
the fit sentence of the rue. Whle other commssions have deteed tht the "business"
qualifier for "all UN loops" was intentionaly or decidedly omittd, the ALJ canot support this
conclusion because a residential UN loop counted as business line conficts with the fit
sentence of the rue. Furer, it is ilogical to conclude that a residential line is a business lie. A
non-switched UN loop providig servce to a residential cutomer confcts with both the fit
sentence of the rue, as well as the thd sentence.
79. Once the number of business lies are counted per wie cente (i.e., the secnd
sentence of the rue), the thd sentence restrcts the tally at the wie-cente level by thee
enumerated adjustments. See 47 C.F.R. § 51.5. The rue provides no fuer basis for
modfications. The FCC could have explicitly defied components of the defition in te of
the ARS 43-08 components or specific ILEC records, but they did not. Furer, to base
calculations upon specific inormation does not necessarly requie that it be based exclusively
on such information. The FCC has found tht the crtera provide the foundation for inerences
drwn from inormtion.
80. In suar, the UN loop component of the business lie calculation by wie
center shall be modified to exclude residential and non-switched lies.
F. Inclusion of EELs Among UN Loops
81. Qwest contends tht EELs ar properly includable among UN loops because an
EEL is essentially an unbundled loop plus inteoffce trport. By use of an EEL, a CLEC can
provide servce to a customer in a given wi center when the CLEC is collocated in a dierent
wie center. Hearg Exhbit 10 at 21-22.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
25
Before the Public Utilities Commission of the State of Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
82. Whle Qwest talles EELs at the wire cente level, the tay is equay subject to
the thee modifications in the FCC rue as a component of the UN loop element. Ther is no
distiction as to which component of the tally the thee modifications apply.
83. An EEL is a combintion of a loop and trport. The loop component of the
EEL is not a business lie under the FCC's defition uness the loop, proviioned in
combintion with other UN, is connectig the end-user customer with ILEC end-offces for
switched servces. Thus, the loop component of an EEL shal be treated the same as a UN loop
for puroses of impairent and to determe the wie center for which the loop is talied.
G. Vmtage of ARS Data
84. To detere business lie counts on March 15,2005, effective date of the TRO,
Qwest used the December 2003 ARS data. is Qwest maintas that 2003 data is the proper
vitage of data to be applied. Qwest argues tht the FCC's statement tht ARS data tht had
aleady been crted and :fed for inclusion in ARS Report 43-08 could only refer to 2003
data. Even though available, Qwest contends tht FCC did not intend at the tie of the TRO to
rely upon data that was then incomplete and unoffcial. The passage of tie alone does not
justify applyig different data th Qwest was requied to use for the intial designation of non-
impaired wie cenrs in Febru 2005.
85. Qwest argues tht applyig data tht later becomes available is inconsistent with
the FCC's intent that a wie center, once determed to be non-impaired canot subsequently be
found to be impaied. On a simlar basis, Qwest rejects Mr. Denney's suggestion tht both 2003
and 2004 data should be considered.
is ARS da is not rert at a wi cete level; rather, it is rep at a stade leve1. Hear
Exhbit 19 at 135. ARS data conta the number of Qwest re business lies. Hearg Exhbit 19 at 79.
ARS data would not include CLEC UN-P lies orl00s. Heag Exhbit 19 at 137.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
26
Before the Public Utilities Commission of the State of Colorado
Decision No. COS-0969 DOCKET NO. 06M-OSOT
86. Mr. Brigham contends tht Ms. Notaan made an error in cacuations regardig
the Boulder wie center, but he is unable to identify the basis because she did not provide her lie
count supportg the arguent. As to the classification of the Colorao Sprigs Mai and
Denver East advocated by Staff, Qwest adts that impaient is detered by the vitage of
data utilid.
87. Qwest utilied Decembe 2003 ARS data as the only ARS data available to
respond to the FCC's requiement that Qwest submit their lists of wie centers meetig the
TRO's non-impaient critea on Febru 4,2005.
88. The Joint CLECs oppose Qwest's reliance on 2003 ARS 43-08 data. Rather,
Mr. Denney contends tht the most recent lie counts available on the effective date of the TRRO
(i.e., from December 2004) should be used. The FCC's rues regardig DSI and DS3 UN loop
availabilty took effec as of the effective date of the TRO. He sees no reasonable basis for
relyig upon data collected over a year pnor to the effective date of the TRRO. To the contrar,
he notes that the FCC relied upon analysis of December 2004 ARS data for analysis with
the TRO. In rebutt, Mr. Brigh counters tht Mr. Denney's cite reference refer only to
defitions, rather than ARS data tht would not yet have been availe.
89. Mr. Denney testied tht the Deceber 2004 data is closest in tie to the
effective date of the TRO (Mch 11,2005) and that fiber-based co-locations were measured
durg that tie period as well. Therefore, the lie count most nearly matchig the fiber-based
measurement is the December 2004 data. He contends tht the Commssion should rely upon the
tieliest inormtion available in the futue. Hearg Exhbit 19 at 190.
90. Staff opposes Qwest's reliance upon 2003 ARS 43-08 data. Because the
TRO was effective March 11,2005 and 2004 ARS 43-08 data was available at tht tie,
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
27
Before the Public Utiities Commssion of the State of Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
2004 data should be utiized for analysis. ARS data is generated anually as of the end of the
calenda year. The data is then fied with the FCC in Apri of the followig yea. Sta
acknowledges the FCC's intent that readly available data provide the basis for anysis and
contends that the most recent ARS data is consistet with that intent and is appropriate for
impairent detertions.
1.Discussion
91. The AU views ths issue as somewhat of a red herrg. It is clear that the FCC
rues implemented non-impaient because the commencement of the conteplate trition
period began upon the effective date of the order. However, there is no clear expression of intent
or abilty to make an effective impaient fidig prior to the effective date of the resultig
rues. Rather, the FCC rues estalish critea upon which a deteration would be made.
Where an impairent determtion is dependent upon business lie counts, the detertion
must be mae as of the tie of the relevant data. The FCC ha determed tht the AR 43-
08 data is the appropriate data that is readly verifiable data. Tht report tabulates lies as of the
end of the calenda year. However, the inormtion is not compiled and reported to the FCC
unti the followig Apri. Once fied, the reliable foundation accessible to ILECs becomes
readily confable by competitors.
92. Because the rues became effective on March 15, 2005, tht is the earliest date
upon which ths Commssion could measure the impaient determation to designate an inti
list of non-impaied wie centers. Furer, while arguents have been presented as to
impairent as of March 15,2005, line counts have only been demonstrte as of the end of the
precedig two calenda year. Because the FCC's action implies imediate use of ARS data
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
28
Before the Public Utilities Commssion of the State of Colorado
Decision No. C08-0!)(í9 DOCKET NO. 06M-080T
to measure impaient, the most recent and relevant data from the end of calenda year 2004
will be utiliz to designate an intial list of non-impai wie cente.
93. In order for wie centers to be designte as non-impaied in the futue dependent
upon business lie counts contained in the ARIS report, the proponent must show that
applicable fiber thesholds are met with reaonable tie proxity. Whle the evidence may
not show preise calculations at the same point in tie, a reasonable inerence must be drwn
based upon the evidence where an impaient detertion is based upon business lie counts
contaed in the ARS report. Thus, the Commssion must consider the period of tie for
which the ARS data is probative and peruaive as to existig line counts.
94. Based upon the FCC's reliance and the demonstrte tig of the fiiztion of
the ARS report ths Commssion fids tht, in absence of extrordi unoreseen
circumstaces, the calenda year-end lie count included in the ARS report is a reasonable
estition of curnt line counts from April 1st thugh December 31st of the calenda year
durg which the ARS 43-08 report is fied with the FCC. Due to the volumous effort to
captue and compile inormation for ARS reportg, inormation is not fied and available
until April 1. A nie-month widow (assumg tiely filig) thereaft balances the FCC's
reliance upon the ARS 43-08 report and the need for tiely and relevant evidence with the
availabilty of inormation to support a request to add to the list of wie cente found by ths
Commssion to be non-impaied.
95. Ilustrtively, for Janua, Febru, and March, 2008, December 31, 2006 data is
no longer the best evidence of business lie counts. Afer April 1,2008, the ARS 43-08 data
is avaiable to support a fiing until the end of the calenda year. An evidentiar safe harbor is
effectively create for the ARS 43-08 data. Outside the safe habor, a company is free to
Exhibit No. 202
Case No. QWE-T-OB-07
D. Denney f Joint CLECs
29
Before the Public: Utiities Commission of the State of Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
request a fidig of non-impairent between Janua 1, 2008 and Marh 31, 2008. However,
the proponent of such a request must show tht al crtea parally deendent upon lie counts
were met under the rue with the applicable tie fre of Janua 1,2008 though March 31,
2008. The Commssion will no longer consider ARS data compiled as of December 31, 2006
to be the best evidence as to lie counts af December 31, 2007. Despite the wisdom of Staffs
advocacy to the contrai, the ALJ does not believe tht FCC rues allow ths Commssion to
preclude a request for an impaient detetion durg a signficant porton of a calenda
year.
96. ARS 43-08 data reportg line counts for December 31, 2004 shall be used for
puroses of ths intial impaient classification of Qwests wie center as of March 15, 2005
because the 2003 data is no longer the best evidece of lie counts at such tie. Therefore the
Colorado Sprigs Mai and Denver East will be classifed as non-impaied for DS3 loops.
97. Havig made fidigs as to Qwests obligations as of March 15, 2005, it must
also be noted tht the fidig did not affect what Qwest actuly offered or provided. Ths
decision is not effective retroactively and does not retroactively change the classification of any
wie center.
H. Transition of UNs in Non-Impaied Wir Centers
1. Costs for UN-P Conversion in Non-Impaied Wire Centers
98. If a wie center is found not to be impaied, affectd UNs will need to be
convertd to alterative Qwest servces, to another carer, or self provisioned by the CLEC.
99. Qwest contends entitlement to recover of costs associated with the process of
converg UN trort or high-capacity loops to alternative facilties and argements.
Qwest contends the costs would not be incued but for the conversion. Millon at 3.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
30
Before the PubUe Utiities Commissiou of the State of Colorado
Deeisiou No. COB-O'6'DOCKET NO. 06M-OBOT
100. Because the afected wie cente have been classifed as non-impaied, Qwest
presumes the CLEC has made an economic choice to contiue with Qwest rather th self-
provide or change to another provider. If Qwest's cost are ignored, that economic choice is
distortd. Millon at 3. If Qwest is forced to pay the associate costs, Qwest is put at a
compettive disadvantage in a marketplace deteed to be competitive by the FCC.
101. Qwest contends tht UN conversions are requied by the TRO. If Qwest were
not allowed to conver the UN circuits, Qwest contends tht the FCC's non-impairent
fidigs in the TRO would be negated. Hearg Exhbit 6 at 8-9.
102. Ms. Millon identied the processes necessar to conver a UN to a special
acess/private lie circuit. See Hearg Exhbit 6 at 4-6. In her rebutt testiony, she explai:
For wie centers tht the FCC has deemed to be 'non-impaied' Qwest is no
longer requied to provide access to DS 1 or DS3 UN loops or inter-offce
tranport. Ths FCC detertion in the TRO mean tht Qwest is no longer
requied to price these servces at Tota Element Long Run Incrementa Cost
(TELRIC) costs. UNs are priced at TELRIC costs, and thus, in order for Qwest
to be able to price these servces at somethg other th TELRIC, as the TRO
entitles it to do, it is necessar for Qwest to convert them to private lie serces.
Wht ths mean from an operationa stadpoint is tht if a CLEC rem on
Qwest's facilties at the affected wie cente (intead of disconnectig the UNs
and availig itself of altetive facilties), Qwest must convert those UNs to
private lie serces.
Hearg Exhbit 12 at 4.
103. Qwest's combintion of manua and automated processes is intended to enure the
conversion process is trparent to the CLEC and its customers' serce.
104. Qwest contends that 47 C.F.R. §§ 32.12(b) and (c) requie tht the circut ID be
changed for proper maintece of subsidiar records. Millon at 6. Ths is also necessar for
Qwest to properly trk UNs and private lie servces and to properly apply applicable serce
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
31
Before the Publie Utilities Commission of the State of Colorado
Decision No. COI-0969 DOCKET NO. 06M-OIOT
pedormance requiements. The circuit il also identifies the tye of existig parete and
determes which serce and repai center is responsible for the circuit.
105. Qwest advocates use of the Design Change chage rather th a unque charge for
the UNto-Private Line Conversion Process because the Design Chage chage involves simlar
fuctional areas and work taks. Qwest contends that the costs for a unque chae would only
increase the rate to CLECs.
106. Qwest requests that the Commssion acknowledge it may access an appropriate
chage for work pedormed in the converion process.
107. Qwest's product catalog contemplates trsitionig circuits from UN to Private
Line/Special Access Serces without any physical chages to the facilty. The Joint CLECs
contend tht the circut il chage is for the benefit and convenence of Qwest, the inconvenence
of the CLEC, and risk the CLEC cutomer's servce in the process. Because the facilty and the
serce do not change, the Joint CLECs contend that the converion is not a network facilty
issue; rather, it is with Qwest's intern systems. The converion allows Qwest to chae
higher monthy recurg charges while eliatig pedormce measurements. The volunta
choices of Qwest regardig conversion are stated not to be requied by the TRO.
108. The Joint CLECs conted that Qwest's proposed conversion process wi expose
customer' servce durg converion and that the exposue will only impact CLEC customer.
Manua inteention in the process exposes increased risk due to hum error. Al risks could be
avoided if Qwest merely modified the rates for existig serces rather th requig a chage to
the circut il. The Joint CLECs also reject Qwest's asserton that a chage in ciruit il is
requied. Hearg Exhbit 15 at 57.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
32
Before the Publie Utiities Commission of the State of Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
109. Ms. Miion counters tht:
the circuit ID is Qwest's only mea of trackig the difference between UNs and
private lines in systes such as the TI database and the WF A system. These
systems are used to inventory circuits and assign repai and matence of the
circuits to the appropriate Qwest cente. Ths is importt because the repai,
testig and matenace of circuits for UNs and private lies are handled out of
dierent work cente. In the long ru Qwest is able to matain trk and
servce all of its cutomers, includg CLECs and their end-user customer, better
and more effciently if it is able to identify accurtely the tyes of serces and
facilties it is providig to these respective categories of customer. It would be
grossly ineffcient, expensive and wastefu for Qwest to mae changes to its
myrad of legacy syste, processes and trkig mechansms, such as circut
IDs, in order to accommodate each new reguatory nuace regardig how it offer
its serices to its cutomer and its competitors.
Hearg Exhbit 12 at 7. She contends tht it is not justied for Qwest to pedorm ths
systeprocess rework in a competitive envionment, especially when Qwests existig systems
are in place to track private line servces.
110. The Joint CLECs oppose imposition of the non-recg chae (NC).
Priy, they contend Qwest is the cost causer and should bear the burden. Secondly, the
TRRO cautioned an incentive on the par of ILECs to impose varous tyes of charges upon
CLECs. Thd, Qwest does not impose the såme charge upon its own customer. Qwest did not
impose a converion chage when customer tritioned from UNP to QPP. To impose the
NRC unjustly penales facilties-based provider. It is uneasonable to impose a conversion cost
to contiue the same servce fuctionaity at a substatialy higher price.
111. If an NRC is alowed at all, the Joint CLECs contend it should be a Tota Element
Long Run Incremental Cost (TELRIC) UN rate. They oppose some of the costs (spifically
includig engieerig costs for a chage tht does not requie engineerig) Qwest included for
cost recover as well as the basis for applyig the Design Chage Chge. Finly, Joint CLECs
oppose any inerence that the NRC is beyond the Commssion's jursdiction.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
33
Before the Publle Utiities Commission of the State of Colorado
DeeisioD No. COB-0969 DOCKET NO. 06M-OBOT
112. Ms. Miion contends that Mr. Deney's anlogy to UNP to QPP conversions is
not meangf or helpfu and she distigushes the converion at issue herein.
113. Staff contends tht CLECs wi have no pratical altertive but to conver UNs
to different Qwest servces. The process Qwest describes to implement such a chage involves
several maual processes. Staff points out tht Qwest acknowledges tht there is no chage to
the physical circuit, yet the prposed process contemplates a necessar circuit change to properly
identify the circuits.
114. Staff opposes the proposed NRC because the CLEC is not diectly the cost causer.
Second, CLECs have no pratical alterative but to convert UNs to Qwest products. Thd,
Qwest ignores increased profit magi in private lie serce as a mean to recover trition
costs. Sta believes the proposed NRC is uneaonable in comparson to Qwests existing
charges to its own customers for chagig the ciruit ID for a private line serce ($20). Lastly,
Qwests process supportg the NRC does not reflect a tota servce long ru incremental cost
(TSLRIC). Sta conteds tht the Commssion requies just and reasonable rates be based upon
costs of forward lookig effcient processes and systems, not embeded costs. Qwests NRC is
based on a curnt ineffcient embedded process, rather th the more effcient process described
in testiony. Based upon Stas concer, it is recommended tht no NRC be assessed for the
converion of a UN circuit to a private lie ciruit.
115. Ms. Millon demonstrted that Qwest needs to trck circuit IDs to allow it to
contiue to provide the existig fuctionality of servces. It would tae a signficant investment
to design and implement an automated process to effectute the necessar conversion from UN-
P to private line servces in a more effcient maner than though legacy systems, processes, and
trkig mechasm.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
34
Before the Public Utilities Commission of the State of Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
a.Discussion
116. A well-recogned reguatory priciple is tht the cost causer should be requied
to bear the resultig cost. If cost causation is impossible to determe, then costs should be
borne by the beneficiar. There has been no showig that CLECs caused any requied chage to
contiue their existig serce and that no diec benefit will be derved by any chage reed
Rather, the conversion of serces exposes only CLEC customers to potential risk of servce
disruptions durg trition. The evidence is unebuttd tht Qwest, at least intially, is the
beneficiar of lesser reguation from the FCC's determtion tht a marketplace is non-
impaied. It is also unebutted tht a non-impairent determtion will signficantly increae
Qwest competitors' recug charges. It ha not been shown that Qwests intially increased
revenue from ths extrrdiar event will not recover trsition costs.
117. Qwest has not demonstrted tht the NRC should be recoverble from CLECs or
tht costs must be recovered from a converion chage. Because UN-P conversions are caused
by Qwest, or the FCC to the benefit of Qwest, to the detrent of CLECs, it is just and
reasonable tht Qwest bea the cost of tritionig in the most effcient mean. In any event,
Qwest has not justified imposition of the NRC as a diect converion cost.
2. CLEC Notice
118. The Joint CLECs conted that Qwest should be requied to notify CLECs and the
Commssion of chages to wi center designations and provide the factu evidence supportg
changes. The Joint CLECs contend tht CLEC review and Commssion approval of futue
impaient determations are crucial going forward for a number of reasons.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
35
Before the Public Utiities Commission of the State of Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
119. Because of the vital importce of the impaient deteation to CLEC
investment decision, the Joint CLECs contend that all CLECs should be inormed when a wie
center is with 5,000 lines, or with one fiber collocator, of changig designtion.
120. Mr. Denney testified regardig a CLEC's need for tiely inormtion regardig
reclassified wie centers:
I mean ths is a big worr for our business unts, especially the people doing
plang, tag to our shaholder and to our investors. You know, you do
business plang on what your expenses are going to be going forward, what are
the risks you face. You need to reveal these risks to your shareholders. And they
ask all the tie, What's next, what wie centers are going to be next on the list?
We need to have some idea so we can at leat account to our shaeholders and say
or account internlly and say here's some risk tht we may be facing here, we
bettr sta lookig. Are there other ac alterntives out there for us or not?
Wht can we do to tr to hedge our bet so that one day suddenly we're not just
completely stuck. And these plans go out for a while.
I'm not personay involved in those plans, I just know I get the question all the
tie from these folk. I mean, they're worred about what is it that's comig up?
Where are the next changes going to be? Where are my costs going to go up
next? Where are my wholesale costs going to change? And so tht's the tye of --
it gives you some abilty to at leat kid of hedge in ter of accountig for these
increased places where costs may increase going forward.
Hearg Exhbit 19 at 184-185.
121. The Joint CLECs note that Qwests trsition period pales in comparson to the
one-year tranition period the FCC established in the TRO. The FCC also recogned the
signficant rate shock involved in a trition in addtion to the practical problem of establishing
alternative servce argements and argig for seamess migrtions to avoid cusomer
impacts. The Joint CLECs contend tht the FCC's one-year trition should be the standad for
all futu tranitions. Tarffed rates Qwest proposed to chage for deliste UNs are signficantly
higher than the UN rates (i.e., the DS3 UN rate is $608.14, while the month-to-month
intetate special access rate for DS3 Chanel Termtions is $2,200.00, more than thee ties
Exhibi t No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
36
Before the Public Utilities Commission of the State of Colorado
Decision No. C08-0'6'DOCKET NO. 06M-080T
as much as the UN rate). Chges in costs will afect CLECs' business plan. Collocation
builds are expensive and tie consumg. The expected retu from a collocation will be
drtically lower if high-capacity loops, UNs, or UN trsport were suddeny to become
unavailable. Uncerty as to futue UN availabilty will also afect CLEC investment in
facilties. Providing CLECs with inormation on the statu of wie centers with respect to
business access lines and fiber-based number will alow them the maxum opportty to
rationally pla futu investment.
122. Ms. Alberheim refutes Mr. Deney's arguent for a lengtened trition period
because she contends the support he references is only applicable to tranitionig the intial set of
wie cente and the one-year perod contemplated in the TRO was to begi upon its effective
date. She conteds tht the FCC made no statement as to subsequent wie centers. She contends
tht it does not follow tht the same transition should apply to subsequent wie cente and that a
shorter trition is reasonable where futue proceedigs are liely to affect a smaller set of wie
centers.
123. Ms. Alberheim sees no reason to ad the adtrtive burden upon Qwest and
tht Mr. Denney's thesholds do not indicate tht a chage in classification is iment. Qwest
also conteds tht such notice would allow CLECs to "game" the system to ensur the wie
center would not be likely to be non-impaird. She contends tht the FCC has adessed the
appropriate theshold and that additional notice requiements would create an undue burden that
the FCC did not contemplate.
124. Mr. Brigh also points out the pracal implication of the Joint CLEC proposal
in ths regard. Because line counts are based upon ARS data Qwest would only become
aware of ths inormation on an anua basis. Thus, he believes any other notice is of
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
37
Before the Public Utilties Commission of the State of Colorado
Deeision No. COS-0969 DOCKET NO. 06M-OSOT
questionable value. Furer, the fact tht a wie center is with 5,000 lies of non-impaired
status does not mean that the wi cente will ever become non-impaired.
125. Mr. Teitzel acknowledged that it would be possible for Qwest to provide
additiona notice to CLECs about calenda-yea-end ARS data when the data is input durg
the followig Apri. However, he questions the benefit of the inormation in the cuent business
envionment. Hearg Exhbit 19 at 43. The year-end data is compiled durg the fit qua of
the followig calenda year for reportg by April 1.
126. Mr. Teitzel also explained that Qwest tracks the number of lies in an exchage
on a monthy basis, but tht inormtion will differ from ARS data. He detals those
differences in testiony. Heag Exhbit 19 at 53. Cuent syste identi how may simple
business lies are in the exchage or wie center, or the number of active chanels that are
trked as being in a parcular wie center if they are sered by a DS 1 or DS3 serce. Hearg
Exhbit 19 at 53.
a. Discussion
127. The FCC defied a trsition period for the converion of UNs in the TRO.
No par has shown tht the FCC contemplate modification of the trsition period for
convertg UNs in non-impaired wie cente. No par ha shown a basis upon which
unbundling obligations can be imposed for trition in non-impaied wie centers. The FCC
explicitly adopted trition plan and tied those plan to the effective date of the TRO (see
47 C.F.R. § 51.319).
128. However, it is reasonable tht the Commssion ensure that all compettors in the
maketplace have the best aggregate inormation available to Qwest to anticipate and projec the
impaient of wie centers in the futue.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
38
Before the Public Utilities Commission of the State of Colorado
Decision No. C08-0CJCiCJ DOCKET NO. OCiM-080T
129. The 1996 Act was inteded to encourge competitive deployment of failties. In
par the availabilty of UN-P supportd the FCC's revisitig unbundlg requiement in the
TRO. The process of eliatig UN-P must be considered in how to maxze prospective
competitive opportties. The availabilty of competitive providers in a wie center is intended
to iner feasibilty of actu or potential competitive deployment. TRO at' 24. However, upon
implementation of a fidig of non-impaient, Qwest is no longer obligated to offer serce at
TELRIC rates and no existig competitor is requied to resell its facilties.
130. Qwest established trsition proviions in § 2.8.4 of the TROflO Amendment
to its interconnection agreements (ICAs) for high-capacity UNs. The provision generally
provides notice to CLECs and the Commssion "when wie ceters are reclasified;" CLECs wil
no longer order high-capacity UNs aft 30 days' notice; and CLECs wi have 90 days to
trnsition DSI and DS3 UNs and 180 days to trition dak fiber. Albersheim at 14. However,
existig ICA languge is not controllg to term and conditions approved by the Commssion.
Because such languge may represent the negotiation and compromise of positions on multiple
issues among specific pares, the Commssion canot be fuly inormed as to the basis for such a
specific provision. Thus, the Commssion must adess each issue independently on its merts.
131. Qwest points to the availabilty of ARS data to competitors and the proposed
process of notig competitors of a request to change the impairent sttu of a wie center.
Whle CLECs can easily monitor ARS data it is reflective of only one component of the
business lie calcuation. Furer, Qwest's arguent fails to fuly consider the impact an
impairent detertion can have on CLEC operations as well as the abilty to plan and operate
a business. Qwest is the only company capable of compilig aggregate impairent data and
such inormtion diectly impac opertions of all provider in the marketplace (includig
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
39
Before the Publie Utilities Commission of the State of Colorado
Deeision No. C08-0969 DOCKET NO. 06M-080T
Qwest and CLECs). Thus, it is reasnable to level the playig field so that all competitors have
access to the same inormation.
132. It seems there are two ways that the playig field might be leveled: trition
afr an impaient determtion or monitorig and notice in anticipation of requests to change
an impairent determtion.
133. The importce of tiely information for CLECs is unstable. Pricing afects
ever aspect of CLEC opertions. The availabilty of serces also impacts their abilty to
contiue providig serces to existig and futue customers.
134. As a given wie cente approaches non-impaient thesholds, Mr. Denney
described how tiely inormtion would be put to use in implementig business strategy. Firt,
consideration could be given to the possibilty of cost increases and the need to plan for them.
Consideration could be given to buildig CLEC facilties or seekig alterative mean to access
affectd end-use customers. Financial and reguatory risk could be more accurtely report.
Hearg Exhbit 19 at 188-189. Givig an ilustrtive example, Qwest proposed increasing the
estited wholesale cost of a UN-Ioop from $65 to a special access rate of $165 - - an increase
of more than 250 percent. Hearg Exhbit 19 at 189. Such drtic chages in cost strctue
have a diect and obvious impact upon any CLEC's overl business plang.
135. The Commssion fids tht sharg avaiable aggrgate impairent inormtion
among competitors provides the most reaonable allowable notice within the scope provided by
the FCC. Thus, Qwest will be requi to share aggregate data regardig impairent critea
with the Staff, OCC, and CLECs. Although Qwest appropriately notes tht such inormation
may not be deteative as to impairent, it will at least be equay available to CLECs for
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
40
Before the Public Utilities Commission of the State of Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
business plang. The ultite usefuess of the inormtion is left to those receivig the
inormtion.
136. The need for accuy trggerig notifications is less crtical than to support an
impairent determation. Thus, as soon as Qwests records reflect fiber-based collocations
with one connection of chaging impaient tier, or 5,000 business lines of chaging
impairent tier, a notification must be provided to all active competitive local exchage
provider CLECs (i.e., though Qwests Change Mangement Process (CMP)), Staff, and the
OCC. A copy of al such notices must be filed in support of any subsequent impairent
proceedig for an afect wie center.
3. Blockig of Orders
137. The Joint CLECs rase concers regardig Qwests abilty to block CLEC orders.
Also, questions are raised as to how the abilty to block an order is consistet with ,r 234 of the
TRO. In any event, if a CLEC mistaenly self-cerfies, it is suggested that Qwest has adequte
redress though back biling. However, CLECs are wiling to agree to procedures allowig
Qwest to block order where "1) the rejection of ordes is lite to facilties designte as non-
impaied aftr par review of the underlyig data and consistent with the Commission-approved
process established in ths proceedig; and 2) the term, procedures and details for the rejection
of such order are known in advance and mutully agreed upon." Hearg Exhbit 15 at 49. The
Joint CLECs requie that they be given due process before they wi wave their right to self-
ce.
16 Additionally, the specifc term and procedures must be known and mutully agreed
upon.
16 Notaly, thugh ths section, CLECs ar not wavig their right to self ce under the TRO. Rather,
ths proceedig is resutig in a fidig that a CLEC caot renably self cer an ord in a wie cente tht the
Commsion clasifies as non-impaied unde FCC crtea.
Exhibit No. 202
Case No. QWE-T-OB-07
D. Denney, Joint CLECs
41
Before the Publie Utilities Commission of the State of Colorado
Deeision No. C08-0969 DOCKET NO. 06M-080T
138. In rebutt, Ms. Alberheim conteds that a filig by Qwest to chage the statu of
a wi center would put CLECs on notice tht an order submittd would be dispute pending a
Commssion decision as to the statu of the wi center. She also suggests that the Joint CLECs'
interpretation of~ 234 of the TRO might necessitate burdenome litigation that would not mae
sense, is impratical, and unworkable even though pares agree tht one proceedig for all
paries is more desirble for addressing disputed wi centers.
139. Ms. Albersheim's rebuttl testiony also clares that Qwest does not intend to
block CLEC orders in absence of Commssion approval (i.e., before a Commssion decision
declares such wie center not to be impaired). Qwest agrees with Mr. Denney's testiony that
"order rejection should be limted to wie centers on a Commssion-approved list of non-
impaired wie center." Hearg Exhbit 8 at 6, quoting Hearg Exhbit 15 at 50. However, once
the pares age to when orders may be rejected, Qwest does not agree that the term and
procedures for rejectig orders mus be predetermed and agreed to by all CLECs.
Ms. Alberheim also references Stas position as being consistent with Qwests position
regardig rejection of orders and ~ 234 of the TRO. She contends that the reality of
Mr. Denney's interpretation would spawn numerous Commssion proceedigs that would
potentialy cause untended customer serce impacts.
a. Discussion
140. As to matter of generl applicabilty, the effective date of a ta on fie with the
Commssion can unequivocally establish when Qwest would be authoried to reject CLEC
order based upon a fidig of non-impaient. As to requiements of ICAs, obviously the
individua ter may apply as to the effective date of chages in the impaient statu of a
parcuar wie center.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
42
Before the Public Utilities Commission of the State of Colorado
Decision No. COB-0969 DOCKET NO. 06M-OBOT
141. Qwest clared in rebutt that CLEC order wi not be blocked in absence of
Commssion approvaL. Ths position is reasonable and will be adopted. So long as a taff is on
fie with the Commssion identifyg the classifcation of a parcular wie cente as impaied,
Qwest shall accept order for processing. However, once the effective taff no longer identifies
the classification of a parcular wie center as impaired, Qwest is no longer obligated to accept
CLEC order.
142. The Commssion fids tht no CLEC can reasonably self-cerfy that it is entitled
to unbundled access to parcular network elements in wie center found by ths Commssion to
be non-impaired under the FCC crteria. Thus, Qwest will no longer be requied to provision
circuits to a CLEC from a non-impaied wie cente puruat to its wholesale taff in effect
despite a CLEC's self-cerfication in accordace with the TRRO.
143. In conclusion, the pares have not demonstrted tht applicable taff processes,
includig the rues of pratice and procedure, are not best suited to defie when CLEC order
may be rejected. The Commssion is also best sered by retag the flexibilty and discretion
to accommodate foreseeable alternatives and unoreseen circumstaces in the futue.
I. Future Proceedigs for Determiation of Impaiment
144. Qwest contemplates futu proceedigs for considertions of additional non-
impaient fidigs as circumstaces chage over tie. Whe Qwest contemplates CLECs
havig an opportty to diute Qwest's application of FCC rues, it does not believe. CLECs
should have the opportty to re-litigate the FCC methodology as applied by Qwest.
Alberheim at 15.
145. Qwest contends tht a single docket govered by procedures simlar to curt
taff filig procedures would be most appropriate for the resolution of disputes. Qwest proposes
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
43
Before the Publie Utilities Commssion of the State of Colorado
Decision No. COR-096'DOCKET NO. 06M-OROT
tht notice to all CLECs be provide though the CMP notication. In absence of an objection
raised with 30 days, the wie cente list should be deemed approved by opertion of law.
Albersheim at 15.
146. If no objection is rased, the update list would be in effect by operation of law
and the ta rate would apply. If a tiely objection is rased Qwest seeks an expedited
resolution that would be effective 30 days followig the intial notification to CLECs. If the
resolution resulted in a chage in wie center statu, Qwest would then back bil CLECs to the
effective date. Albersheim at 16.
147. The Joint CLECs contend tht any request to reclassifY a wie center based upon
line count inormation should be restrcted to when new ARS inormation is mae available
(i.e., once a year).
148. The Joint CLECs support the position tht Commssion decisions regardig
interetation of the TRO should not be re-litigated though the process of updatig the wie
center list. In addition, the Joint CLECs support an expedted process with regard to additions to
the wie center list.
149. The Joint CLECs diagree that proposed changes by Qwest should become
effective by "operation of law." They seek to avoid modifications by Qwests unateral action
and support a Commssion determtion as to impaient of Qwest wie center af afectd
pares have an opportty to meangfy review the evidence used to support chages to
Qwests wie cente list.
150. The Joint CLECs conted tht 30 days' notification to CLECs before changes are
implemented is inffcient. A 30-day notification is inequate for a CLEC to properly plan and
react to changes in UN availabilty. Qwest plans to provide notice and af 30 days the CLEC
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
44
Before the Public Utilities Commission of the State of Coiorado
Deeision No. C08-0969 DOCKET NO. 06M-080T
will be biled altetive rates. The CLEC is put in the position of havig to review Qwests
claim, intiate disputes if Qwests data is unclear, and determe whether to trition facilties
to an altetive serce with 30 days. Though Qwest clai that it is offerg a 90-day
trition, ths trition is meangless to the Joint CLECs since the CLEC will be retractively
biled to day 31. In any event, 30 days is inufcient for CLECs to alter business plang in a
parcular wie cente.
151. Mr. Denney testified that the Joint CLECs do not oppose, in absence of
objections, 30 days as a reasonable tie perod for a wie cente to go into effect as a non-
impaied wie center. Hearg Exhbit 19 at 173. However, they believe the Commssion should
detee such mattrs on a case-by-case basis. Hearg Exhbit 19 at 173. The dispute comes in
the term of rates and trition and he conteds such matter should be reviewed by the
Commssion on a case-by-case basis. Hearg Exhbit 19 at 173. ilustrtively, Mr. Denney
contends tht the Commssion could establish the effective date 30 days followig notice if
CLEC objections were found to be invalid or frvolous. Hearg Exhbit 19 at 174. Such an
approach discourges Qwest from filig applications lackig merts whie also discourgig
CLECs from litigatig objections lackig merits. Additionally, should any par purue frvolous
or improper clai, such as to cause unecessar delay or needess increase in the cost of
litigation, the Commssion can award recover of attrney fees and costs.
152. The Joint CLECs also oppose back billg to when Qwest aded a wie cente to
the list of non-impaied centers when a CLEC unccessfuy disputes updates to the list. Whe
the Joint CLECs do not oppose the theory of Qwests proposal, any disputes regardig the
effective date should be setted by the Commssion based on the circumtaces that caused a
delay in implementation. ilustrtively, if Qwests fig lacks proper supportg data then an
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
45
Before the Publie Utiities Commssion of the State of Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
ultiate determation of non-impaient should not be effective as of the originl filig date.
Qwest and the Joint CLECs rase appropriate concers regardig the incentives suroundig the
update process.
153. In rebuttl, Ms. Albeheim clafies tht Qwests proposal is that the effective
date of an update to the list of non-impaired wie centers should be 30 days followig notice of
an update to the list. Back billg should be pertted from the effective date. She disputes
inerences regardig incentives in the update process.
154. Aside from Qwest's proposal, the Joint CLECs include an alterntive proposal for
updatig the wie center list. The Joint CLECs propose that:
(1) Before Qwest fies a request (along with supportg data) to ths Commssion
to add a wie center to the wie center list, Qwest will issue a notice to CLECs
inormg them of the filing, notifyg them that the filig (which will be filed as
confdential puruat to the protective order) may conta a CLEC's confdential
data, advising each CLEC tht it may obta data in the docket by signg the
protetive order, and indicatig tht, if a CLEC objects, the CLEC should contat
the Commssion before a given date. These notices would be simlar to the
notices tht ILECs curently send with respect to request for CLEC-specific data
(see example in Exhbit DD-8). The example of the Qwest notice in Exhbit DD-
8 shows tht Qwest aleay has a process in place for notig CLECs (includig
non-par CLECs) of when Qwest intends to provide CLEC-specific data to the
other pares or the Commssion puruat to a protective order.
(2) Qwest should mae a filig with the Commsion and provide sucient
supportg data to the Commsion and CLECs so that the data can be reviewed.
Once sufcient data is provided the CLECs would request any necessar follow
up inormation. Ths exchange of inormtion should tae no more th 20 days,
assumg that Qwest provides sufcient data with its intial fig.
(3) Once the inormtion exchage is complete and CLECs have reviewed the
data, CLECs should file exceptions, challenge the sufciency of the data or
object to inclusion of any wie center on the list. If there is no objection, the
Commssion should approve the wie center list, send a notice contag the
updated approved wie center list, and post the approved list on the Commssion's
website. If there are any objections, the Commssion should approve a list
contag only any undiputed wie cente and resolve al diutes as to
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
46
Before the Publie Utilities Commssion of the State of Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
disputed wie centes. Once the disputes are resolved the Commssion should, if
necessar, update the lit.
Hearg Exhbit 15 at 45-47.
155. In Rebutt, Ms. Albersheim disputes tht the notice advocate by the Joint
CLECs is reasonable. She conteds that 30 days, as proposed by Qwest, is more th reasonable
to inorm the Commssion if they object to a requeste updte to the wie cente lit and there is
no need for notice in advance of fiing with the Commssion.
156. Staff proposes an alternative approach to provide an effcient application process
to update the list of wie cente. Specifically, Qwest would fie an application to update the list
of non-impaied wire cente based upon the order in ths docket. The application could seek to
update based upon the number of fiber-based collocators anyte the theshold is met. However,
if the update is sought based upon business lie counts, then the filig should only be allowed
with a reasonable perod of tie followig availabilty of anual ARIS 43-08 data for the
year in which Qwest meets the theshold. Testiony in support of the application must be filed
with the application and provided to CLECs concuent with the fiing. Staff would be alowed
to audit data and all supportg documentation to enure completeess and demonstrted
accury of the data, includig any physical verfication thereof. Upon the effectve date of a
Commssion decision approving an update to the list of non-impaied wie centers, the updte
list taes effect. Once the update is effective, a trsition perod would allow CLECs to convert
existig circuits. Simarly, the trsition pricing identified in the TRO should apply. CLECs
would be able to order UNs in any impaied wi center until the effective date of an order
fidig the wie center is no longer impaied and correspondigly updatig the list of non-
impaied wi centers, with provision for billng effective as of the date of Qwests application to
update the lit. The CMP would be utiliz to implement procedures assurg that electronic
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
47
Before the Public Utilities Commssion of the State of Colorado
Decision No. C08-0~J69 DOCKET NO. 06M-080T
interfaces between the ILEC and CLEC are sufciently tested followig any chages to the
Commssion's list of non-impaired wie cente so as to minimize any possible disruption to the
custmer's serce.
157. In rebutt, Ms. Alberheim reitetes that the process to update the list of non-
impaired wie centers should not be used a mean to delay the appropriate designation.
Therefore, Qwest proposes an expedited procedure where the designtion would be effectve
30 days followig intial notication to CLECs and the Commssion tht a wie center is non-
impaired. If a dispute arses as to the chage in statu of a wie center, Qwest would agree not to
implement a change in rates until the proceedig is complete; however, Qwest believes that it
should be allowed to back bil CLECs to the effective date if the chage in wie center statu is
approved. Qwest also conteds tht the results of ths docket bind al pares.
158. Addessing Ms. Notaan's testiony tht a Commssion order should be
requied to effectute an update to the list of non-impaied wie centers, Qwest contends an order
should not be necessar where the matt is not dispute. Qwest mata tht such a filig
should be effectve by opertion oflaw 30 days followig the fiing of the update.
159. In rebutt to Mr. Denney's testiony, Ms. Alberheim clarfies that Qwest will
include supportg data to verfy that a new wie cente is non-impaied in accordace with the
FCC methodology as ordered by ths Commssion. To expedite availabilty of anticipated
highy-confdential CLEC-specific data, Qwest proposes tht a stadig non-disclosur
agreement or protective order be imposed. Subject to confdentialty protetions, Qwest wil file
sufcient detail to enble CLECs to valdate access line counts and fiber-based collocator counts
used in the futu non-impaient anysis, as more specifically defied in Hearg Exhbit 8 at
5-6.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
48
Before the Public Utities Commission of the State of Colorado
Decision No. COS-0969 DOCKET NO. 06M-OSOT
160. Ms. Alberheim acknowledges tht Qwest is requied to submit CLEC impacg
systems chages to the CMP. Qwest agrees that the CMP process should be uti; however,
the interal design and implementation of these systems chages is deteed by Qwest, and is
not predetermed and agred to by CLECs. Whle CLECs have an opportty to provide input,
and CLECs may test chages, systems chages ar not implemented in the way that Mr. Denney
demands and ths is not the tie or foru to change the CMP process.
1. Discussion of the Natue of Future Proceedigs
161. The Commsion must be parculy cautious of unlateal actions imposed by
one competitor upon another in a competitive marketplace. Therfore, notification regardig
requests for impaient determtions will not rely upon the CMP. The CMP does not provide
adequate assurce that appropriate peronnel will be informed in all mattrs and intaces.
Different persons may requie notice on impaient issues and an ICA may reque specific
notice. As discussed subsequently, notice of an application to detee impaient will be
requied as in other applications fied with the Commssion.
162. Colorao law enes adequate notice is provided for chages in rates and alows
the Commssion discretion to mae cert modifications as to requied notice. Furer, the
Commssion's Rules of Prctice and Procedure were adopted to ensure all interested pares ar
treated fairly and that the rights of al intereste pares are protected.
163. Pares advocate differg positions to defie the effective date of futue decisions
regardig impairent. However, no specifc determtion wil be adopted As suggeste. by
Mr. Denney, preseration of discretion may alow the Commssion to act based upon anticipated
as well as unoreseen futue circumtaces. In a futue proceeg, the Commssion may
consider sufciency of Qwests diclosure of relevant inormation to supprt a filig or a
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
49
Before the Public: Utilities Commission of the State of Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
CLEC's motives in litigating a futue impaient deteation. The Commssion should reta
the discretion to maage implementation of impaient decisions based on the circumtaces at
the tie.
164. The extet of Commssion discretion will not be modfied herein. Furer, the
ALJ ha unanwered concer as to whether positions advocated ru afoul of the prohibition on
retroactive ratemag outside the scope of an ICA. The Supreme Cour has recogned that
"(r)etroactive ratemag is prohibite. Colorado Energy Advocacy Offce v. Public Sero Co.,
704 P.2d 298, 305 (Colo. 1985). The reason for ths prohibition is to prevent the unaiess
entailed in alterig the legal consequences of events or tractions aft the fact. Peoples
Natual Gas Co. v. P.D.C., 197 Colo. 152, 154, 590 P.2d 960, 962 (1979)." Silverado
Communication Corp. v. Public Uti/so Comm'n, 893 P.2d 1316,1321 (Colo. 1995).
165. The TRO proscribes procedurs for CLECs to order serces. All pares
support Commssion adoption of procedures tht ensur faiess in the implementation of the
TRO's prescribed process, in par. However, any attmpt to bind the Commssion in futue
proceedigs or to dictate priority of futu impairent proceedings over other Commssion
matters canot be adopted. The Commssion canot foresee the reasonableness of such an
approach on beha of futue Commsions and inteeste-par concerns.
166. An impaient determation contrls Qwest's unbundling obligations under
§ 251. Qwest ha filed its Statement of Generay Avaiable Term and' Conditions (SGAT
puruat to 47 U.S.C § 252(f) tht it genery offers with Colorao to comply with the
requiements of § 251. See 47 U.S.C. § 252(f)(l). Those terms and conditions concern price and
non-price elements. In order for the fidigs of non-impaient to have genera availabilty,
they must be incorporate into Qwests wholesale taff and the SGAT.
Exhibit No. 202
Case No. QWE-T-OB-07
D. Denney, Joint CLECs
50
BeCore the Publie Utities Commission oC the State oC Colorado
Decision No. COS-O",DOCKET NO. O'M-OSOT
167. Although followig the completion of briefig, the Commssion recently
confed and clarfied that Qwest is requied to mata wholesale taffs on fie with the
Commssion. Decision No. C07-1095. Qwest curently provides serce in accordace with
taffs on fie with the Commssion as well as the SOAT. A fidig of non-impaient elites
Qwest's obligation to sell high-capacity unbundled loops in applicable wie centers. Because the
classification of wie centers (i.e., impaired and non-impaied) will now be necessar to
detere the applicable rate, impaied wie cente must ultitely be included in the wholesale
taff so tht pricing applicable to impaied wie center maybe determed.
168. The Commssion stated: ''Ideed, we agree with Sta tht the languge of § 40-3-
103, C.R.S., which requies tht al Colorado public utities:
shall fie with the commssion ... schedules showig all rates, tolls, rentas,
chages and classifications collected or enorced," along with the languge of
§ 40-3-104, C.R.S., tht requis tht a Colorao public utiity may only chage
rates in its schedules in accordace with the notice, suspenion, and hearg
reuiements contaed in tht sttute, provide a clear legislative intent that
Commssion approved tas, includig Qwest's wholesale taffs, must be on fie
with the Commssion.
Decision No. C07-1095.
169. Anticipatig a need for considertion of procedural modications and confdential
matt, includig potential highy confdential protections, the taff process alone does not
provide the most expedient and effcient vehicle to consider such matt. However, as Staff
suggests in par, the application process does. Qwest would be free to apply for approval of taff
modifications to change the impairent classifcation of a given wie center. In doing so, Qwest
may choose how to prepare the application and the extet to which it support the filig though
testiony. If uncontested, approval could be expedite by the Commssion. If the proposed
ta is par of such an application, the Commssion could authorie a compliance filing of the
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
51
Before the Public Utiities Commssion or the State or Colorado
Decision No. COB-O'6'DOCKET NO. 86M-OBOT
ta modification on shorted notice. If the Commssion constres an intervention to be fied
for an improper purose, inteention could simply be dened or altertive procedures could be
adopted. In any event, inteeste pares could begin shag inormation durg the notice
period. If disputes are resolved inteentions could be withdrwn leavig the application
unopposed.17 Therefore, utilig existig procedures can approxite the result contemplated
by the pares.
170. It is importt to note that the pares are free to negotiate ICAs. However,
adoption of new Commssion procedurs for mattrs of gener applicabilty must be in the
public interest for the benefit of al concered. The Commssion canot blindly prioritie ths
impaient filigs over all other futue matt. Rather, the application process provides an
opportty to act based upon circustaces present at the tie and any par can request
procedur modifications.
2. Discussion of Protective Order
17 i. The pares seek to impose a proteve order regardig confdentiality to std
outside of the Commssion's rues; however, the pares have not demonstrted adequate need for
processes outside of the Commsion's rues.
172. The Commssion contemplate that appropriate extrordi protections may be
imposed based upon the facts and cirumstaces present in each case. See Decision No. C05-
1093 in Docket No. 03R-528ALL (though not the fi decision in ths ruemg docket,
subsequent decisions did not affect Rule 1100, 4 Code of Colorado Regulations 723-1).
173. Whle there is understadable concer as to tieliness of access to inormation
and the Commssion's abilty to act, it ha not been shown tht existig rues do not provide
17 Ths gener process is reguarly uti in trrttion matt before the Commssion.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
52
Before the Public Utilities Commission of the State of ColoradoDedsion No. COS-0969 DOCKET NO. 06M-OSOT
adequate flexibilty. Qwest could seek to shortn notice of an application and request
appropriate confdentiality protetions, if necessar. Inteenors could access confdetial
inormtion as soon as they become a par. Pares could access highy confdential inormtion
as ordered by the Commssion. Finly, if an intervenor's investigation lead them not to oppose
the grtig of the application, a filig could be mae to tht affect or the inteention could be
withdrawn.
174. If the pares seek to rely on the confdentialty protections afforded by the
Commssion, the Rules of Prtice and Prcedure provide sufcient flexibilty to address mattrs
on a case-by-case basis. Additionaly, access to underlyig data by Staff and the acc canot be
questioned. Finly, it is noteworty that the confdentiality rues do not prohibit varations
though negotiated ICAs, should pares so desire.
J. Other Issues
175. In response to Decision No. R06-0406-I, the pares identified issues to be
resolved in ths matt. Sta suggested that the need be considered, if any, for a process for the
Commssion to periodicaly review the non-impaied wie center list for accury and whether a
wie center, if it no longer meets the requiements for non-impaired statu, can be designted as
impaired. Qwest contends tht a process for reviewig the list of non-impaired wie centers for
accurcy or removal because a wie center found to be non-impaired is not subject to
reclassifcation, citig 47 C.F.R. § 51.319(a)(4)(i); 47 C.F.R. § S1.319(a)(S)(i); TRO at 94,
footnote 466; and 47 C.F.R. § S1.319(e)(3)(i). Alberheim at 16.
176. The ALI agrees with Qwests interpretation of the TRO tht once a wie center
is in fact non-impaied, it canot late be classifed as impaired even if applicable crteria are no
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
53
Before the Public Utiities Commission of the State of Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
longer met. However, this prompts one clarcation of implementig a Commssion fidig tht
a wie cete is non-impaied.
177. If a Commssion decision were to eroneously declare a wie center to be non-
impaired, when in fact it was impaied, adoption of the foregoing procedes does not afect
jursdiction as to Commssion decisions (i.e., §§ 40-6-112 and 40-6-114, C.RS.). Such relief is
not a reclassification of a non-impaied wie center; rather it would void an erroneous fidig
tht the stadads established by the FCC were met.
m. STIULTION FIINGS AN CONCLUSIONS
A. Statement
178. Followig conclusion of the hearg on the merits, but before completion of
briefig, . Qwest, with authorition for all pares, stated tht the disputes at issue in the
proceedig had been settled by Qwest; Covad; Eschelon; McLeod; and XO. (Tese CLECs will
be refered to as the CLEC Settlig Pares. The CLEC Setling Pares and Qwest will
collectively be refered to as the Settlig Pares) and effort were underay to filize a
settlement agreement. Staff and the OCC anticipated supportg the settement, but reserved any
rights with regard thereto until the settement was available for review. Based thereupon, the
deadine to tie Reply Statements of Position was vacated. Decision No. R07-0513-1
179. On June 22,2007, the Settlig Pares jointly tied their Notice of Joint Filig and
Motion for Order Approvig Settlement Agreement. The tiing pares request approval of the
settlement between Qwest and the Joint CLECs.
180. On June 27, 2007, Joint CLECs and Qwest jointly tied their Notice of Joint
Filing and Amended Motion for Order Approvig Setlement Agrement (Joint Motion). The
Joint Motion supersedes the motion filed June 22, 2007 and requests approval of the amended
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
54
Before the Public Utities Commission of the State of Colorado
Decision No. C08-09"DOCKET NO. 06M-080T
settlement among the Settling Pares fied therewith (Settement). The Motion fied June 22,
2008 will be dened as moot.
181. By Decision No. 07A-0585-I, response tie to the Joint Motion was exteded.
Any par was allowed up to and includig July 20, 2007, to fie a response to the Joint Motion.
182. On July 20,2007, the Response ofCbeyond Communcations, LLC (Cbeyond) to
Qwest Corpration's Motion for Order Approving Settlement Agreement was filed. Cbeyond
opposes approval of the Settement in its curent form.
183. On July 20,2007, Staffs Response to QwestlJoint CLEC Amended Motion for
Order Approvig Settement Agreement was filed. Staff also opposes the Joint Motion.
184. By Decision No. R07-0585-I, an evidentiar heag was scheduled to consider
the Joint Motion. At the assigned tie and place, the hearg was called to order. All pares
appeared though counel. Exhbits A, B, and D though G were identified, offered, and
adtted into evidence. Exhbit C was identified, but not offered into evidence.
185. Rober Brigh a Sta Director in Qwest's Public Policy Deparent testified in
support of the stipulation.
186. Theresa Millon, a Staff Director in Qwest's Public Policy Deparent testified in
support of the nonrecurg chare tht is in Section IV of the Settlement.
187. Dougla Denney, employed by Eschelon Telecom in its legal deparent as the
Director of Cost and Policy, testified in support of the Settlement.
188. Greg Darell, Director of ILEC relations for Cbeyond, testified in opposition to
the Settement.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
55
Before the Publie Utilties Commssion of the State of Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
189. Lyn Notaan, a RatelFincial Anyst with the Fixed Utilities Division of the
Commsion, testified in opposition to the Settlement.
190. Ths decision now tus to consideration of the Settlement. It is importt to
understad that consideration of the settement is independent of the merits of the underlyig
proceedig. The Settlig Pares expressly resered the right to tae inconsistet positions as to
the underlyig merts of the case. Therefore, the evidentiar record as to the Joint Motion will be
bifucated and decided based upon the motions hearg and the pleags related thereto.
191. The evidence presented at the motions hearg makes clear that approval of the
Settlement is not with the intended scope of ths docket and resolves no issue identified by the
Commssion above. Pror testiony and positions of the Settlig Pares as to the underlyig
proceedigs are not affected or compromised by approval of the Joint Motion. Furer, the
Settling Pares do not intend to bind non-settling pares by the Settlement, if approved by the
Commssion. Thus, al pares remai free to tae inconsistent positions as to the Settlement and
the underlyig proceedgs.
192. At the conclusion of the motions hearg, a deadle was established for the fiing
of post-hearg statements of position regardig the Joint Motion. On September 24, 2007,
Statements of Position were filed by Qwest, the CLEC Settling Pares, Cbeyond, OCC, and
Staff.
193. On September 24, 2007, Qwest fied a Motion for Leave to File Stateent of
Position in Excess of Th Pages. No response was fied. Good cause havig been shown for
the unopposed request, it will be grte
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
56
Before the Publie Utiities Commission of the State of Colorado
Decision No. C08-0'6'DOCKET NO. 06M-080T
B. Settlement Agreement
194. The Settlement, Hearg Exhbit A, consists of seven sectons and five
atthments. The Introduction describes the FCC's TRO and TRO orders, the varous petitions
fied with varous state commssions, the dockets tht were opened by varous state commssions,
and the pares' desir to effectte a multi-state setlement to fuer their mutu interest.
195. Several agreed-upon defitions of key te used in the Settement are included.
196. The Settement then sets out the Settlig Pares' agreement for an Intial
Commssion-Approved Wire Cente List. Without regard to the defitions or methodology of
the Settement, the pares agree to a list of which Qwest wie cente are the intial non-impaied
wie cente, the associated non-impairent designtions, and effective dates.
197. The pares' negotiated agreement to a NRC for conversions of UNs to
alterative servces or products, includig the agreed-upon NRC rate and lengt of ter as well
as how credits for those CLECs which have already paid a higher NRC rate will apply, and the
statu of the rate af thee years.
198. The pares agreed to a methodology to be applied for puroses of non-impaid
facilties to determe non-impaient and/or tier designtions, includg how to count ''business
lines" and "fiber-based collocators."
199. The pares agred to futue Qwest filigs requestig Commssion approval of
Non-Impaient Designations and Additions to the Commssion Approved Wire Cente List.
200. Finaly, there are "other provisions includg ICA provisions and amendments,
refuds related to Qwest identified non-impairent designtions tht are not identified as non-
impaired in Attchment A to the Settement Agrement, credts to CLECs that have been back-
biled to March 11, 2005 for facilties with an effective non-impaient date of July 8, 2005
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
57
Before the Public Utilities Commissiou of the State of Colorado
Decision No. COI-0969 DOCKET NO. 06M-OIOT
(intead of March 11, 2005), as well as general provisions about settlement, precedent and
termtion of the Settlement.
201. The Settlement incorporates five attchments: the intial List of Non-Impaied
Wire Centers, alterntive ICA amendment languge, and a model protective order.
202. Mr. Brigham generly descrbed the Settlement at the evidentiar hearg. Tr. pp.
45-49.
203. Notably, the Settlement has pares to it that are not a par to ths docket. No
basis ha been shown for Commssion jursdiction over these entities in ths docket. To be
acceptable, the Settlement must be clear, undertadable, and admstratively enforceable. As
to this Settement, non-pares are no more th a signatory to an agreement -- effectively a
contrct. There is no basis upon which a Commssion decision in ths docket is adstrtively
enforceable as to non-pares. Therefore, the Agrent wi be considered only as to the pares
in ths docket. Any approved agreement must be enorced by or agait any non-par by
complait.
204. At hearg, counel for the Settling Pares clarfied that they seek Commssion
approval of their negotiated agreement to resolve their dierences without bindig any carer
not a par to the Settement.
205. The Settlig Pares do not seek Commssion approval of the te of the
Settement as a substative decision on the merts of ths docket; rather, the Settling Pares seek
approval of the Settlement as applied to them.
206. If other carer desir to adopt the Settlement, they may do so by executig one
of the ICA amendments appended as atthments to the Settement. See Hearg Exhbit A,
Atthments B, C, andD.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
58
Before the Public Utilties Commission of the State of Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
207. The Settlement is a six-state agreement: Arona, Miesota Uta Oregon,
Washigton, and Colorao. Qwest Covad Eschelon, Integr McLeod, Onvoy, POPP.com,
US Lin doing business as TDS Metrocom, and XO entered into the Settlement. The pares to
the Settlement, that are also pares to ths docket, include Qwest, Covad, Eschelon, McLed, and
XO.
208. The pares to the Settement do not inted to create any precedent by the
Settement and have compromised varous positions for settlement puroses.
209. Section N of the Settlement provides for a non-recurg charge of $25 in any
intace where a CLEC, in a non-impaired wie cente, chose to convert their UN facilties to
an alterntive Qwest serce. The amount is a negotiated rate. It is not based on a cost study.
210. The settling pares agreed to compromise on $25 rate without reference to a
TELRIC cost study, because the pares are free to negotiate those rates without reference to
§ 252 of the Act.
211. The NRC effectively amounts to a biling change. The physical circut and the
fuctionality of the servce stay the same.
212. Qwest contends tht the Settlement is compliant with FCC rues. On behaf of
Qwest, Ms. Millon believes the compromised rate is just and reasonable. She conteds that the
rate need not be TELRIC-based. In the underlyig proceedigs she has advocated for the rate to
be $50 and that such a rate is much lower than the costs to provide the servce. She conteds that
$25 is the reasonable result of a negotiated compromise.
213. Testifyg on behaf of the CLEC Settling Pares, Mr. Deney contends tht the
Settlement is consistet with the Telecom Act because the pares are allowed to ente into
agreements under § 252 of the Act without regard to whether the agreement precsely complies
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
59
Before the Public Utilities Commission of the State of Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
with FCC rues. Thus, he does not asser tht the Settement necessarly complies with FCC
rues. Rather, it is his opinon tht the agreement need to comply with the rues. Whle
Mr. Denney does not agree tht the settement is consistent with the FCC's rues, he believes the
settlig CLECs have the right to settle a controversy under § 252.
214. Staff is not able to substatiate a valid non-recurg chage. Sta contends that a
TSLRIC rate should apply to the non-recurg charge and tht such a chage is consistent with
stadads applied by the FCC and Colorao for deterg whether the rate is just and
reasonable in the reta envionment.
215. Ms. Notaan contends that there is an automated process involved in the serce
associated with the fee and tht Qwest stops tht automated process to validate and check that the
automation worked as intended.
216. Section V of the Settlement defies the methodology for determg non-
impaied facilties, non-impairent, or tier designtions.
1. Line Counts
217. Mr. Brigham clarfied how the Settlement accounts for tyes of lies.
218. The line count addressed in Section V.A.2 includes al UN loops and al EELs --
al DS 1 loops, DS3 loops, and basic loops. Aside from litigation positions, the Settlement
reflects the compromise of the settg pares. Cbeyond demonstrated tht the Settement
compromises Mr. Brigham's and Mr. Deny's statements on the issue in their prefied testiony
(M. Brigh mainta that all UN loops should be included. Mr. Denney supported exclusion
of the non-switched CLEC UNLs). The Settlement adopted Qwests position on ths issue.
Under the Settlement, Qwest is only includig its reta porton of incumbent-owned switched
retal access lies. Qwests private lie circuits are not included.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
60
Before the Publie Utlities Commission of the State of Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
219. Mr. Brigh offered Qwest's interpretation of the business line defition: The
fit sentece addresses switched access lines and the second sentece adds the sum of all UN
loops connected to a given wie center. The number of business lies in a wir center shal equl
the consumer of all ILEC switched access lines (i.e., Qwest reta lies). Then the rue ad the
sum of al UN loops connected to tht wie center, not some porton of the UN loops. The
thd sentence adds tht Qwest shall only include in ARS counts of Qwest reta lies, those
access lies connectig end-user customer with incumbent LEC end offces for swtched
servces; non-switched access lines; and ISDN and other digital access lies by countig each
64 kilobits equivalent as one lie (for example, a DSI line corrsponds to 24 64 kilobit voice-
gre equivalent chanels in a larger data pipe, and therefore to 24 business lies).
220. The CLEC settlig pares also conted that the Settlement's calculation of access
lines under the ARS methodology is consistent with the FCC's rues.
221. Qwest acknowledges that Qwest private lie serce would not be for switched
servce. These appear in the private-lie colum of the ARS Report 43-08 and are not
included in line counts under the Settlement.
222. ISDN is a switched servce. For exaple, ISDN-PRIs ar included as swtched.
The Settlement uses the voice chaels tht are acy utilid out of tht 24, consistet with
the data reportg to ARIS.
223. DSL lies are not counted at al because they are not in ARS. If Qwest
provides a CLEC a DSL compatible loop as a UN, the count is based upon the loop provided.
A DSO is one loop, a DS 1 loop is 24 loops, and a DS3 loop is 672 loops.
224. The Settement attmpts consistency with ARS Reprt 43-08. ARS only
includes Qwest retail counts, not UN loops. Qwest private lies are not included in the
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
61
Before the Public Utilities Commission of the State of Colorado
Decision No. COB-0969 DOCKET NO. 06M-OBOT
switched lie counts in the report. Therefore, they did not include any Qwest private lies in line
counts. ARS Report 43-08 only includes Qwest retal serces. For Qwest retal servces,
Qwest only included Qwest switched acess lines.
225. QPP lies for business customers, and the loops associated with those customers,
are considered QPP. They are not also included in the UN-L counts. Qwest retail lies are
included separtely. Unbundled loops and EELs ar a wholesale servce tht are included
separtely and will only count in the end-user serg wie cente. UN-P, to the extent they
remai are included separately. ISDN-PRIs, Qwest's retail lines, are included as they ar in
ARS.
226. Under the Settlement, UN-P business lies are include but residence lines are
not. UN-P business lines are a switched serce -- the equivalent of basic exchage servce
when sold to a CLEC.
227. Any residential UN-P customer would not have been included in line counts
because they were convered to a residential QPP prduct. If a carer moves that QPP customer
into UN-L, the UN-L would be included in the count as any other UN-L line. UN-L is
included without regard to the use made by the CLEC. Qwest curently ha no way of knowig
where that lie ultimtely seres a residential or business customer.
228. Mr. Brigh attpted to clar the reference to "other simlar platform
offergs" in Section V:A.4. Firt, ths phre did not impact the calculations in the most recent
wie center calcultions. Ths phre is intended to reference only commercial agreements that
are simlar and have a loop associated with them, as opposed to other commercial agreements
that would not be included.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
62
Before the Public Utities Commission of the State of Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
229. The intial wie center list, at least in par does not comply with the methodology
proposed to be applied to futue wie center proceedgs. Ths list of wie center is based on
2004 data. There were some intaces where a negotiate agreement was reached to exclude a
wie center. However, as far as lines are concerned, the list is based on the Settlement
methodology defied in Section V.
230. All business line data provided to support futue wie cente designtions wil be
disaggregated to the wie cente level in addition to being disaggregated to the CLEC level
already included in the settement. In a new wie cente proceedig, any intervenig CLEC
could access the methodology's underlyig data in that proceedig, subject to a protectve
agreement.
231. The Settement provides that when Qwest fies futue non-impaient
proceedigs, any proposed non-impaient designtions will be made in accordace with the
methodologies in the Setement. The Settling Pares will jointly request that the Commssion
mae its best effort to resolve the issues with 60 days. Notably, the provision to request
expedted treatment does not bind the Commssion in any regard whatsoever.
2. Collocation
232. Secon ~B, addessing colloction, pracally recites the rue on fiber-based
collocation, 47 C.F.R. § 51.5.
233. Section VI.C addresses a stadig protective agreement applicable to futue
dockets where Qwest might request cert wire center be declar no longer impaired. Qwest
contends the provision, like the reder of the Settement, is not bindig on non-signatories.
However, Qwest will be wiing to supply inormtion to CLECs tht ar not a par to the
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
63
Before the Public Utiities Commission of the State of Colorado
Decision No. COS-0969 DOCKET NO. 06M-OsOT
Settlement so long as they execute the protetive agreement. Qwest is not going to argue that
only signatories to the Settlement would get the inormtion.
3. Subsequent Proceedigs
234. Under the contemplate protective agreement, pares to the Settlement would be
entitled to access supportg data upon fig, wheras non-signtories would have to intervene
and execute the protective agrement before havig access to the same data.
235. Interenors would have 30 days with which to raise objections to Qwests
proposed designation of a non-impaied wie cente. Without a stadig order, pares would
otherwse have less than 30 days to review inormtion because they would have to obtain the
underlyig data aft fiing.
236. Secton VI.F.3.A states the Settlig Pares' agreeent to tae a joint litigation
position in specifc futue proceedigs. The pares agree to jointly request tht the Commssion
use its best effort to resolve any dispute with 60 days of the date of the objection. However,
other interenors in the futue proceedig are not bound thereby and may oppose such a request.
The provision binds the Settlig Pares, not other inteenors or the Commssion. Mr. Brigh
clarfied tht the intention is to have the Commssion conduct a hearg and issue a decision
with the 60-day perod.
237. Section VI.A.4 alows for non-signtories to opt into the Settement.
238. Whle testiony was offered tht data would be avaiable to Sta the Settement
does not clearly descrbe the circumtaces puruat to which Sta and OCC would access
inormtion other th as an intervenor in futue proceedgs. See Section VI.E.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
64
Before the Public Utilities Commission or the State or Colorado
Decision No. COB-O!)6!)DOCKET NO. 06M-OBOT
239. Staff notes that the Settement would alow Qwest to use data that is potentialy a
year or more stae in requestig a designtion of non-impaient. Sta believes the Commsion
should rely upon the most recent ARS 43-08 data tht is filed with the FCC.
240. Qwest fies its AR 43-08 data anually on Apri 1st. Under the provisions of
the Settlement, Qwest could seek non-impaient a few weeks prior to a new filing using the
data filed the prior year. Staff opposes the use of stae data.
241. Staff raises concern tht Section VI.E.2.c of the Settlement makes a vague
reference to a "simlar platform product." Sta support providig specificity around what
Qwest is requied to provide in futue filings so there is trparency in the data for consideration
of futue wie center non-impaient designtions.
242. Secton VI.E.2.b references a non-exclusive list of mium inormtion tht
Qwest will provide in their fiing. If any additional inormtion is relied upon to support a wi
center non-impaient designtion, the Settlement does not specif that Qwest wi provide al
data that they relied upon. Staff believes it is importt that Qwest, in each of its filigs, provide
all data relied upon.
243. Staff raised concerns about when the 30-day perod for review would begi for
the proceedig contemplated. Ms. Notaan contiues to support Sta's proposed procedure in
the underlying proceedig tht was generlly referenced but did point out tht the procedur in
the Settlement would cause tht review cycle to potentialy be less th 30 days.
244. The abilty of Sta and the acc to obta inormation to support Qwests fiing is
uncertin. Aside from the proposed confdentialty process, discover would be governed by
futu proceedigs. Furer, Staff may utilize audit power to obtain data. In any event, the tie
to obta ths inormtion is uncer.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
65
Before the Publie Utilities Commission of the State of Colorado
Deelsion No. C08-0969 DOCKET NO. 06M-080T
245. Staff is not clear as to the natue of relief in subsequent proceedigs. Reference is
mae both to a Commssion order as well as a ta-lie filig that would go into effect by
opertion of law. Staff is also conceed tht any fidig of non-impairent should be effective
as to all CLECs at the same tie.
246. Staff rases concer regardig the $25.00 non-recurg chae in the Settlement
Agreement. Undertadig that the pares compromised for settement, there is no cost study to
support the settled rate. Sta submits ther is not adequate inormation in the record to support
any specific amount. Therefore, Sta would only support adoption of a nomial chage in
absence of proper support.
247. The Settlement includes a non-recurg chage for the conversion from a UN to
a special access circut or a private line. Ms. Notaan understads that Qwest must chage the
circuit from a UN ciruit to a special acess circuit for biling puroses, for maitenace and
repair, to meet FCC gudelies, and for accountig puroses. Whle it is appropriate to
detere just and reasonable rates, she does not believe it appropriate tht the costs of ths
conversion be recovered from CLECs. However, she was aware of analogous rates tht may
justify imposition of a rate as high as $20.
248. Even if specific concer adessed by Sta were resolved Staff still would not
support approval of the Settlement because the Settlement would still only apply to the Settling
Pares. Staff conteds that ths docket should be used as a docket to set out the rues or tes
goverg how the Commssion will designate impaied wie centers for all of the CLECs in
Colorado. To do otherwse would be inconsistet with the Commssion's obligations taked by
the FCC and contr to the public interest.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
66
Before the Public Utilities Commission of the State of Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
249. Comparg the Settement with Qwests Negotiations Template Agreement
(Exhbit E), Ms. Notaan confed disparte treatment. In Exhbit E, Denver Southeast is
listed as a Tier 1 wie cente. In the Settement, that wie center is designted as a Tier 2 wie
center. The Nortglen wie cente in Exhbit E is lite as Tier 1 whie it is a Tier 2 in the
Settlement.
250. The Settement binds the pares to specified procedures. However, it does not
purort to bind the Commsion or non settg pares to those procedures. Sta is concerned
tht the Settlement will praticably become the default procedur for al CLECs, in contrvention
of the Commssion's intet in openg ths docket, because CLECs will inteene in the existig
proceedig rather th having ha the decision mae in advance.
4. Overal Considerations
251. The CLEC Settlig Pares contend tht approval of the Settlement is in the public
interest because it resolves litigate issues and disputes. The pares pured their settlement in
the context of ths proceedig due to practical considertions. Were individua CLECs to purue
ICA amendments consistet with the Settement in their respecve interconnecon dockets, it
would at least be challengig to mange the complexities of acessing confdential inormation
of multiple providers tht may not be a par to the subject docket. The Settlement results in a
process that the Settg Pares believe to be workable and provides for a Commssion
detetion and approval of non-impaired wi centers.
252. Staff contends tht approval of the Settement is not in the public's best interest
because it only applies to the Settg Pares and will lead to additional controversy and
litigation. Approval wi reult in dierent ICAs with varg te.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
67
Before the Publie Utilities Commission of the State of Colorado
Deeision No. C08-0969 DOCKET NO. 06M-080T
253. Section VI.B adesses futue proceedigs. Whle the pares contemplate
bindig only the Settling Pares, Mr. Deney undertads tht the Settement requis Qwest to
use the Settlement methodology in futue proceedigs applicable to non-signtors of the
Settlement. However, approval of the Settlement does not affect the rights of non-signtories to
the Settlement in such proceedigs. Mr. Deney testified that Qwest has already filed an
application tht is curently pendig before ths Commssion to fid adtiona wi center to be
non-impaied.
254. Staff believes it is importt for the Commssion to establish a methodology
applicable to all CLECs to determe impaient of wie centers, countig in the wie centers,
and defig procedures for the fig of adtional wie centers. Sta also addressed the
appropriate non-recug chage for tranitionig from non-impaied circuits or UNs to special
access circuits. Sta support adoption of one methodology applicable to all CLECs as
contemplated in the scope of the docket and tht suh an outcome is consistet with the FCC's
intet and the TRO.
255. Staff is also concerned tht if the non-impaient designtion is the subject of
negotiation, Qwest will be able to intiate bona fie requests with CLECs to modi their ICAs.
Multiple proceedigs of ths natue would liely end up with more th one set of wi cente
non-impairent rues applyig to dierent CLECs. Of coure, includg non-impairent in a
negotiated agreement opens up the issue to futue modification and debate.
256. In light of the stated purose of the docket and prior statements in the docket,
Staff does not believe tht approval of the Setement is appropriate. Therefore, Staff believes
the Settement should be rejected.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
68
Before the Publie Utities Commission of the State of Colorado
Deeision No. COS-O'6'DOCKET NO. 06M-OSOT
257. Staff joins in Qwest's earlier stateent in ths docket about the "need to expedite
resolution of these issues" and description of "the tye of bindig adjudicatory proceedig the
Commssion should conduct to enure that the reguatory framework established by the TRO is
implemented expeditiously and with clarty." Trancript IT at 67: 12-17.
258. In light of the express purose of ths proceeg, Ms. Notaan points out tht a
compromise among the Settling Pares does not fuer the Commssion's inteest and purose
herein Approval of the Settlement, without knowledge of the tradeoffs derived results in a
private list of non-impaied wie centers tht wi lead to confion and potential duplication of
the resut as applied to different CLECs.
5. Cbeyond
259. Cbeyond purchases chaelied DSls with no subrate capabilty from Qwest to
provide servce to customers.
260. Cbeyond disputes that the Settement is nonbindig upon non-signators. To the
contr, Cbeyond contends that approval of the Settlement imposes an imediate fiancial
liabilty. Higher rates will be accred as if Qwest was chagig special access rates in any wie
center that they clai to be unpaied. Mr. Darell contends ths eventuity would occur
without regard to any Commssion fidigs that the Setlement's non-impaient decision and
methodology contaed in tht decision is legal.
261. In fuer testiony, it was clear tht Mr. Darell was specuatig as to futue
litigation over negotiated non-impaired wi centers where there ha bee no detertion of
non-impaient. He believes that Qwest will seek to chare Cbeyond for facilties outside of its
ICA with Qwest. He anticipates that Qwest will clai a special access rate should apply to wie
centers in the Settlement because it is an unpaied wie cente. Every order placed for servce
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
69
Before the Public: Utities Commission of the State of Colorado
Dec:sion No. COR-0969 DOCKET NO. 06M-OROT
at a dispute wie cente would requie burdensome litigation until Cbeyond's resources are
exhusted or they leave the maket. Upon presentation of such a clai, Cbeyond will accrue the
special access chages without rega to whether Qwest is billig UN rates. The result would
be an increase in retal rates or denial of servce to customer in the disputed wie center.
262. On cross examtion, Mr. Darell could not point to any languge in the
Settlement upon which his concer were based nor could he identify languge allowig Qwest
to increase Cbeyond rates. Mr. Darell could not identify any languge in Exhbit D tht would
allow Qwest to avoid the rCA if the Settlement is approved. However, he reiterated hi concern
tht Qwest wil cite the languge in § 2.8 of Exhbit D as authority to unlatelly chage the list
of non-impaired wi centers.
263. Mr. Darell acknowledged tht § 2.8 of its rCA, Exhbit D, addresses orderg of
unbundled DS 1 or DS3 loops. However, Mr. Darell notes tht the languge of the agreement
references a list that will be provided by Qwest. Because he is concered that Qwest may
unaterly attmpt to chage tht list of wie cente outside of the agreement, Qwest wil tr to
impose the Settlement upon non-signtories to the Settlement. He notes that ths would not be
appropriate because the non-impaient thesholds in the agreement dier from those in the
Settlement.
264. Ms. Notaan noted inerences of dipute as to the list of non-impai wie
centers and properly points out that there are no wi cente in Colorao tht the Commssion
ha found to be non-impaied. Furer, there is no basis upon which any carer should believe
themselves to mae any unatera fidig on behaf of, or in place of, the Commssion.
265. Mr. Darell also acknowledged that § 2.8.3 of the agreement addresses how
Qwest will declare additiona non-impaid wi ceter.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
70
Before the Publie Utiities Commssion of the State of Colorado
Decision No. C08-0'6'DOCKET NO. 06M-080T
266. On cross examtion, Mr. Darell acknowledged that the Cbeyond ICA with
Qwest does not prohibit Cbeyond from contestig non-impairent designtions sought in
accordace with the Settement. Furer, he acknowledged tht Cbeyond ha aleady agred to
the dispute resolution process tht he described as being subjected to as a result of the
Settlement. See § 2.8.1 of Cbeyond's ICA, Exhbit D. However, he matas his belief tht
Qwest will breach Cbeyonds agreement.
267. Mr. Darell is concerned tht the laguge of the Settlement may iner tht the
stipulated wie cente designtions wi not only be bindig on the CLEC Settling Pares. If
Qwest begi chargig special access rates to Cbeyond for circuts, Cbeyond would be
negatively affected in its abilty to compete for small business customer in Colorao.
268. Mr. Darell contends that the Settlement may result in discriatory rates, ters,
and conditions between the CLEC Settlig Pares verus the non-settling CLECs, such as
Cbeyond.
269. Cbeyond contends that varous public policy statements have been made by the
FCC, the Goveror, and the Commsion to encourge the deployment of advanced serces.
Cbeyond provides advanced servces. Yet, Cbeyond conteds tht aproval of the settlement is
detrental to futue expanion of advanced servces to customer.
270. Mr. Darell acknowledges that the Settement's defition of the fiber-based
collocator is consistet with his undertadig of the defition in the FCC rue. However, he
conteds that the FCC rue reuies the countig of the fiber-based collocator as of the date a
request for the chage is made.
271. Mr. Darell disputes tht the Settement methodology for countig business lines
complies with the FCC rues. He also notes tht, despite the agreed upon methodology, the
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
71
Before the Publie Utities Commission or the State or Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
Settling Pares did not follow the methodology in developing the list of non-imaied wie
cente. Thus, he contends that the wrttn methodology wi be applied to everyone going
forward, even though it was not aplied to implement the settlement list of non-impaied wie
center. Mr. Darell contends the Settement is discrtory on tht basis: CLECs that ar not
pares to the Settlement were discrated againt because they got no benefit of the bargai
tht resulted in adoption of a negotiated list of non-impaied wie centers.
272. Ms. Notaan adessed her concer in light of Qwests negotiations template
agreement from Qwest's wholesale website. An excerpt of a porton of the document was
adttd as Exhbit E. On the second page, the agreement discusses Qwest's non-impaired wie
center list for loops and dedicate trsport and provides a list of Colorao wie center tht
Qwest ha deemed to be non-impaid. The document acts as a pratical baselie agreement to
sta negotiations between Qwest and the CLECs when they enter into their negotiations
agreement.
273. A comparson of the wie centers designated by Qwest as non-impaied diers
from the Settlement.
274. Staff believes that Exhbit E ilustrates the concern raised by Cbeyond. Staff is
concerned that Qwest will publish dierig lits causing confion to the CLEC communty.
CLECs enterig the market rely on Qwest and sta from the negotiations template. Although the
intent may not be to bind pares, it may mislead new maket entrts and effectively bind them
to a Qwest-generted list. Staff believes they have a duty to elite uncerty and confion
in the maketplace.
275. A key issue for deteation is whether pares can negotiate impaied wie
center classification. If the issue is capable of a negotiated resolution, Staffs arguent becomes
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
72
Before the Public: Utiities Commssion of the State of Colorado
Dedsion No. C08-0969 DOCKET NO. 06M-080T
somewhat the chicken or the egg. Whe Sta conteds that one methodology should be
adopted, multiple stadads will suely follow if the issue is the subject of negotiation. Thus, if
we must address multiple stadads in the futue, the benefit of rejectig the negotiated
agreement comprised in the Settement must be carefuly considered.
276. The impairent analysis contemplated by the TRO is an integr par of the
maket-openg provisions of § 251(c)(3) of the Act, which requies ILECs to mae elements of
their networks available on an unbundled basis to new entrts at cost-based rates puruat to
stadads set out in § 251 (d)(2). However, an ILEC and telecommuncations carer requestig
an ICA can voluntaly enter into an agreement without regard to the stadads set fort in
subsections (b) and (c) of § 251. § 252(a)(I). FCC rues also prvide: "(t)o the extent provided
in section 252(e)(2)(A) of the Act, a state commsion shal have authority to approve an
inteconnection agreement adopted by negotiation even if the te of the agreement do not
comply with the requiements of ths par." 47 C.F.R. § 51.3.
277. Whle Staff questions the wisdom of enterig into such a negotiated resolution in
absence of undertadig the Commssion's impairent determation, the Act's encourgement
and preference for negotiated agreements overcomes Stas interest in protectig the. pares
from themselves. Because the pares are free to negotiate an agreeent tht does not comply
with the FCC's implementation of unbundlg obligations, the ALJ sees no reason that pares are
prohibited from negotiatig a private classifcation for puroses of their ICA, subject to
§ 252(e)(2)(A).
278. Section VI of the Settement contemplates a parally negotiated agrement of the
pares that attempts to bind ths Commssion into a new tye of proceedig combing an
adjudicated application filing with a negotiate ICA process. In such proceeg, the
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
73
Before the Public Utilities Commission of the State of Colorado
Decision No. COS-O",DOCKET NO. 06M-OSOT
Commssion would be bound to apply the curent extet of agreement among the pares to
classif imairent of adtiona wie centers without regard to whether such agreement
complies with Qwests obligations under the Act.
279. As recogned above, the pares ar fre to negotiate impaient with the lits
set fort in the Act. If the pares agree to amend their agreement over tie, they submit the
amendment to the Commssion for approval under the Act. There is no need for the complex
procedures contemplated by the pares.
280. If pares to an ICA do not agree to an amendment, the ICA or the Act may
provide alterte remedies such as arbitration, adoption of a new ICA, or adoption of the SGAT.
However, the Settlement attempts to bind the Commssion into a process to approve impaient
classification chages tht mayor may not be agreed to by the pares. The Settement provides
more than mere enforcement or dispute resolution. It proposes to expand the scope of the ICA.
281. One canot consider how the Settlement wi affect existig ICA provisions or
futue proceedigs because no existig ICA is a par of the record. Therefore, those provisions
regardig disputed requests to amend the impairent classifcation of wie cente wi not be
considered fuer herein. Such provisions with Section VI of the Settlement are not approved
in ths proceedig, but may be approved where the context of the agreement can be considered.
282. The attpt to impose futue proceegs is unworkable and confing because
different stdads and procedues apply to the tyes of proceegs for each ICA tht is
conteplated to be consolidated. The stada for Commsion approval of a negotiated ICA is
set fort in § 252( e )(2)(A) of the Act. The stadad for Commssion approval of an arbitrted
agreement is set fort in § 252(e)(2)(B) of the Act. The Commssion's rues also dier as to the
tye of proceeg.
Exhibit No. 202
Case No. QWE-T-OB-07
D. Denney, Joint CLECs
74
Before the Public Utilties Commission of the State of Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
283. Based upon the foregoing considertions, it is not consistent with the public
interest, convenience, and necessity to privatie the Commssion to play the contemplated role in
developing negotiated ICA amendments. There is no demonstrted benefit to effectively
implementig a private foru for the Commssion to impose amendments to a negotiated
agreement.
284. Those aspects of Secton VI of the Settement caling for a diect proceedig
before the Commssion to change the imaient classifcation of a Qwest wie cente are
rejected. Rather, those term addressing suh requests shall be lited among the pares in the
context of the ICA. All references to a diect Commssion proceedig to change the impairent
classifcation of a Qwest wie center shal be constred with the context of the ICA.
Ilustrtively, Qwest agrees not to request a CLEC Settlig Par to amend their ICA to add
additiona Non-Impaied Wire Cente until afer the 2007 ARS filing (using December 2006
line count data). See pargrph VI.A.3.
285. Atthments B, C, and D to the Settement are rejected to the extent inconsistent
with ths Recommended Decision.
286. Attchment E to the Settement, and al provisions in the Settement relate
thereto, are rejecte for those reasons addressed as to the merits in the underlyig proceedg.
Ths does not negate the pares' abilty to negotiate confdentiality ageements as par of the
ICA; however, the request for Commssion issuace of a stadig order is dened.
287. By approval of providig inormation to a CLEC Setg Par puruat to the
Stipulation, the Commssion is makg no fidig as to the appropriateness of disclosur or the
applicabilty of confdentialty proteons.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
75
BeCore the Public Utilties Commission oC the State oC Colorado
Decision No. COB-0969 DOCKET NO. 06M-OBOT
288. No specific rmdig is mae to interret reference to "other simar platform
offergs" in Section V:A.4. The te was undertood and agr among the Setting Pares
Whe the phre is ambiguous, it does not cause sufcient concer to rejec the provision in the
context of ths agreement. If adopted into ICA amendments, the phrase is subject to Commssion
interpretation as necessar in the futue.
289. Based upon a review of the Settlement, the AU fids tht the remaing tes of
the Settlement reflect a just and reasonable resolution of the disputed issues among the Settg
Pares. To the extet not otherse inconsistent with ths Recommended Decision regardig the
Settlement, it should be, and will be, accepted.
IV. ORDER
A. The Commsion Orders That:
1. The Motion for Leave to File Statement of Position in Excess of Th Pages
fied by Qwest Corporation (Qwest) on May 14,2007, is grted.
2. The impaient classifications for the followig Qwest wie centers are as
follows:
wie center CLU(8)UN Traort Non-"non-impaied"with
Impaient Tier respect to DSI and/or
DS3 UN loops
Boulder BLDRCOMA Tl
Capitol Hill DNVCOCH Tl
Colorao Sprigs CLCPCOMA Tl
Cus Park DNVCOCP Tl
Denver East DNVCOEA Tl
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
76
Before the Public: Utilities Commission of the State of Colorado
Dec:sion No. C08-0969 DOCKET NO. 06M-080T
Denver Main DNVCOMA Tl DS3
Denver Southeat DNVCOSE T2
Dr Creek DNVCODC Tl DS3
Pikeview CLSPCOPV Tl
Sullivan DNVCOSL Tl
Aberdeen ENWCOAB T2
Arada ARVDCOMA T2
Aurora AURCOMA T2
Denver South DNVCOSO T2
Lakewood LKWDCOMA T2
Nortglen NGLNCOMA Tl
3. Qwest's methodology applied in ths proceedg to demonstrte the number of
fiber-based collocators, modified to be consistent with ths Recommended Decision regardig
CLEC-to-CLEC connections, is accepted and approved. Qwest shal conduct and document
physical verification to support futue impaient detetions.
4. The Federl Communcations Commsion's (FCC) Automated Reprtg
Management Inormtion System (ARS) 43-08 report shal be the best evidence as to
included lie counts from April I st thugh December 31 st of the calenda year durg which the
ARS 43-08 report is fied with the FCC.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
77
Before the Public Utilties Commission of the State of Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
5. For ths intial impairent classification, the Colorao Sprigs Main and Denver
East wie center are found to have met the critera as of March 15, 2005 for non-impairent for
DS3 loops based upon 2004 ARS data.
6. Business lies talled to determe impaient pursuat to 47 C.F.R § 51.5 sh
be calcuated in accordace with ths Recommended Decision. Business lie talles at the wie
center level will be adjusted by the voice-gre equivalent applied to capacity (i.e., used and
unused). Qwest's methodology for identifyg residential UN-Platform (U-P) lies though
the white pages database will be adopted to calcuate the number of business UN-P lies to
detere impairent. The unbundled network element (U) loop component of the business
line tally at the wie cente level shall be modified to exclude residential and non-switched lies.
The loop component of an Enhanced Exteded Loop shal be treated the same as a UN loop for
puroses of impairent and to detere the wie center for which the loop is taied.
7. The proposed non-recug charge associated with product chages in response
to changes in the impairent classifcation of wie centers wi not be approved.
8. With 30 days afer Qwest's records reflect fiber-based collocations with one
connection of meetig criteria to chage impaient classifcation, or 5,000 business lines of
meetig crtea to chage impairent classification, a notification must be provided to all active
competitive local exchange carer (CLECs) (i.e., through Qwests Chage Mangement
Process), Staff of the Colorao Public Utilities Commssion (Sta, and the Colorao Offce of
Consumer Counsel. A copy of all such notices must be fied in support of any subsequent
impaient proceedig for an afected wie center.
9. No unque proces will be adopte at ths tie for the processin of futu
requests for impaient detetion.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
78
Before the Public Utilities Commission of the State of Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
10. In accordace with § 40-3-104, C.R.S., Qwest sha amend its taffs on file with
ths Commssion with 30 days of the effective date of ths Recommended Decision consistet
with ths Decision (i.e., to show all chages in ta rates, tolls, rentals, chages, and
classifications collected or enforced).
11. In order to matain compliance with 47 U.S.C. § 252(f)(1), Qwest shall amend
its stateent of the te and conditions generally offered with Colorado to be consistent with
ths Recommended Decision withi 30 days of the effective date of ths Recommended Decision.
12. No CLEC can reasonably self-cert tht it is entitled to unbundled access to
parcular network elements in wie centers found by this Commssion to be non-impaird under
the FCC critera. Qwest will no longer be reuied to provision circuits to a CLEC from a non-
impaired wie center puruat to its wholesale taff in effect despite a CLEC's self-certfication
in accordace with the Triennal Review Remad Order.
13. The Notice of Joint Filg and Motion for Order Approving Settement Agreement
fied June 22, 2007, is dened as moot.
14. The Motion for Leave to File Stateent of Position in Excess of Th Pages
fied by Qwest on September 24, 2007, is grted.
15. The record in this proceedg is bifcate for consideration of the Notice of Joint
Filing and Amended Motion for Order Approvig Settlement Agrement filed June 27, 2007.
Such motion is decided based upon the motion, the motion for enlargement of time (fied July 6,
2007); responses fied to the motion (filed July 20,2007); Decision Nos. R07-0585-1 and R07-
0638-1; the evidentiar hearg held on Augut 21 and 22,2008; statements of position regarg
the joint motion (filed September 24,2007); and filings regardig supplementa authority (fied
Augut 2, 2008 and Augut 16, 2008). Eschelon Telecom of Colorao, Inc.'s Motion for
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
79
Before the Pnblic Utities Commission or the State or Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
Reconsideration of, and Modication to, the Schedule, filed Augut 27, 2007, addresses
procedurl mattrs affectig the underlyig proceedigs as well as the joint motion.
Accordigly, the motion and Decision No. R07-0725-I wi be considered in both portons of the
record.
16. The Notice of Joint Filing and Amended Motion for Order Approvig Settlement
Agreement filed June 27, 2007, is grte in par. The Multi-State Settlement Agreement
Regardig Wire Center Designtions and Related Issues, a copy of which is atthed hereto as
Appendi A, is incorporated by reference. Portons of Section VI of the agreement (begig at
page 8 of 18) are rejected consistent with ths Recommended Decision. To the extet not
otherse inconsistent with ths Recommended Decision regardig the Settlement, the remaider
of the agreement is approved. However, to be effective, suh agreement must be reflected in an
amendment to the Interconnection Agreements of the pares thereto. To the extent not otherwse
inconsistet with ths Recommended Decision, Appendi A is mae an Order of the Commssion
as if fuly set fort herein.
17. Highy Confdential portons of ths Recommended Decision remin subject to the
protections provided by Decision No. R06-0406-I and sha be strcken from any publicly-
available version of ths Recommended Decision.
18. Ths Recommended Decision sha be effective on the day it becomes the
Decision of the Commssion, if that is the case, and is ented as of the date above.
19. As provided by § 40-6-109, C.R.S., copies of ths Recommended Decision shall
be sered upon the pares, who may fie exceptions to it.
a) If no exceptions are fied with 20 days afer serce or with any extended
perod of tie authorid, or uness the decision is stayed by the Commssion upon its own
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
80
Before the Publie Utities Commission of the State of Colorado
Deeision No. C08-0''''DOCKET NO. 06M-080T
motion, the recommended decision shall become the decision of the Commssion and subject to
the provisions of § 40-6-114, C.RS.
b) If a par seeks to amend, modfy, anul, or reverse basic fidigs of fact in its
exceptions, that par must request and pay for a trcrpt to be filed, or the pares may
stipulate to portons of the trscrpt accordig to the procedur stated in § 40-6-113, C.RS. If
no trcrpt or stipulation is fied the Commssion is bound by the facts set out by the
adstrative law judge and the pares canot chalenge these facts. Ths will limt what the
Commssion can review if exceptions are fied.
20. If exceptions to ths Decision are filed, they shall not exceed 30 pages in lengt,
uness the Commssion for good cause shown pets ths lit to be exceeded.
TH PUBLIC UTITS COMMISSION
OF TH STATE OF COLORAO
Admstrative Law Judge
G:\ORDER\ROS-O 1 64_ 06M-OSOT.doc:HA
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
81
Decision No. C08-0969
BEFORE TH PUBLIC UTITIS COMMSSION OF THE STATE OF COLORAO
DOCKET NO. 06M-080T
IN TH MATTR OF TH JOIN COMPETITI LOCAL EXCHAGE CARRS'
REQUEST REGARING TH STATS OF IMAINT IN QWEST CORPORAON'S
WI CENTERS AN TH APPLICABILIT OF TH FEDERA COMMCATIONS
COMMSSION'S TRNN REVIW REMA ORDER.
ORDER ON EXCEPTIONS
Mailed Date: September 17, 2008
Adopte Date: July 30, 2008
TABLE OF CONTENTS
i. BY TH COMMSSION .........................................................................................................2
A. Statement ...........................................................................................................................2
B. Background................................................................................................... .....................3
C. Discussion of Issues on Exception ....................................................................................3
1. Cbeyond: The factu eror at'¡ 259 of the Recommended Decision should be
correct. ....................................................................................................................3
2. Sta: The Motion for Approval of the Settlement Agreeent should be dened. ....4
3. Sta and the Joint CLECs: The Commssion should order fuer proceedigs to
implement the ordered methodology for the Nortglen, Colorado Sprgs Mai
and Denver East wi centes. ..................................................................... ...............5
4. Joint CLECs: The effective date of non-impaient designtions for some wie
centes should be no earlier than July 8, 2008. ..........................................................7
5. Joint CLECs: The Commssion should clarfy whether the notice provisions apply
to both high capacity loop non-impaient thesholds as well as to a wi cente's
tier sttus. ...................................................................................................................8
The Commsion should clarfy the trition perod as ordered by the AU. ..................8
6. Joint CLECs: The Commsion should clarfy tht Qwest canot implement a
process for rejectig CLEC order without either agreement from CLECs or
approval from the Commssion. ...............................................................................1 0
7. Qwest: The Commssion should approve the pares' Settement Agreement as a
resolution of all issues in ths docket. ......................................................................12
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
Before the Pnblie Utilities Commission of the State of Colorado
DeeisioD No. C08-0'"DOCKET NO. O'M-080T
8. Qwest: Residential and non-switched access lies should be included in the count
of business lines. ......................................................................................................14
9. Qwest: CLECs that use a CLEC-to-CLEC fiber connection should be counted as a
fiber-based collocator. ..............................................................................................18
10. Qwest: Qwest should be allowed to chage the taffed Design Chage Chage
when a CLEC conver a UN to an alterative Qwest servce in a wie center that
has been declaed to be non-impaied. .......... ...........................................................19
11. Qwest: The Commssion should reject the requiement that Qwest provide notice
to the CLECs when its records reflect fiber-based collocations with one
connection of changig impaient tier or 5,000 business lies of chagig
impairent tier. ........................................................................................................21
12. Qwest: The requiment in the Recommended Decision tht Qwest maita its list
of non-impaied wie centers in a wholesale taff or SGAT should be rejected. ....22
n. ORDER...................................................................................................................................23
A. The Commssion Order That: ................................... .....................................................23
B. ADOPTED IN COMMSSIONERS' WEEKLY MEETIG July 30, 2008. ..................25
v. BY TH COMMSSION
A. Sttement
290. Ths matt comes before the Commssion for consideration of exceptions to
Recommended Decision No. R08-0164 filed by Qwest Corpration (Qwest);IS Staff of the Public
Utilities Commssion (Staff; Cbeyond Communcations, LLC (Cbeyond); and DIECA
Communcations, Inc., doing business as Covad Communcations Company, Eschelon Telecom
of Colorao, Inc., McLed USA Telecommuncations Serices, Inc., doing business as PAETEC
Business Servces, and XO Communcations Serces, Inc. (collectively, the Joint CLECs).
These same pares also fied Responses to Exceptions Put to Decision No. C08-0458 and
4 Code of Colorado Regulations 723-1-1505(a).
IS Qwest:ted an Err to its Excetions on May 21, 200S, corrtig footnote 29.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
2
Before the Public Utilities Commissiou of the State of Colorado
DeeisioD No. C08-0969 DOCKET NO. 06M-080T
B. Backgound
291. By Decision No. C06-0161, the Commssion opened ths docket for the purose
of providig inight into the development of a list of non-impaied wie centers in Qwests
servce terrtory and the underlyig data used to develop and update tht list. By Decision
No. R06-0279-I, additional notice of the proceedig was ordered and the tie perod for
intervention was established. The Commssion sered notice of ths proceedg, includig the
deadline to intervene, upon al acve competitive local exchage provider and those on the
Commssion's mal list for telecommuncations intested pares.
292. On April 10,2006, tiely Notices of Inteention were fied by the Joint CLECs
and Cbeyond. Also on Apri 10, 2006, the Offce of Consumer Counel (OCC) and Sta fied
Notices of Interention of Right, Entres of Appearce and Requests for Hearg in ths matter.
293. Af the completon of the proceedigs in ths matt, on Febru 19,2008 the
Admstrtive Law Judge (ALJ) assigned issued Recommended Decision No. R08-0164 that
resolved all issues in ths case.
c. Discussion of Issues on Exception
1. Cbeyond: The factal error at,r 259 of the Recommended Decision
should be corrected.
294. Cbeyond states in its exceptions, tht there is a factu eror in , 259 of the
Recommended Decision. Paragrph 259 states tht "Cbeyond purchaes chanelied DSls with
no subrate capabilty from Qwest to provide serce to its cutomers." Cbeyond assert tht the
correct statement should be tht Cbeyond purhases "unchaelied" loops. Cbeyond notes tht
the error is not of the AL's mag. The trcrpt of Cbeyond witness, Greg Darell,
incorrectly included the statement tht then made its way into the Recommended Decision.
295. Qwest, in its Response to Exceptions, did not object to ths correction.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
3
Before the Publie Utilities Commission of the State of Colorado
Decision No. COS-O'"DOCKET NO. 86M-OSOT
296. We accept Cbeyond's correction and make the change to the Decision.
2. Staff: The Motion for Approval of the Settlement Agreement should
be denied.
297. Staff, in its exceptions, recmmends denal of the amended Motion to approve the
Settement Agrement because the Movants are seekig approval of an agreement tht conta
term and conditions tht should be resolved by the Commssion and not though a negotiated
bilatera agreement. Sta is concered tht, by havig an approved Settlement Agreeent and a
separate resolution of the issues in the docket, confsion will increase and futue proceedgs
wil be more complicated than necessar.
298. Staff is also concered that, if we approve the Settement Agreement, Qwest will
tae inconsistet stag and fi positions in interconnection agreement negotiations. Staff
reitetes its position that ths resut wi lead to confion and potentially to diert outcomes
for different competitive local exchange carer (CLECs). Furer, Sta asser tht the goal of
ths docket - to establish the intial list of non-impaied wie center and the method to detere
wire cente statu in the futue - is simply not resolvable or advanced by the approval of a
settlement that might result in multiple substative and procedur stadads.
299. Qwest in its Response states tht the cornerstone of Stas contetion is tht
Qwest will violate the non-discratory provision of feder law by refuing to sell Unbundled
Network Elements (Us) to CLECs that signed the Settlement Agreeent while contiuig to
sell those same UNs to CLECs that did not sign the Settlement Agrement. However, Qwest
assert tht federl law prohibits it frm engagig in ths prace. The Settement Agreement
commts Qwest to fie an application to seek futu non-impairent designtions and to fie
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
4
Before the Publie Utities Commission of the State of Colorado
Decision No. C08-09Cí9 DOCKET NO. OCíM-080T
specifc data in support of tht application. Qwest states tht it will abide by the Commssion's
decision on its application and apply tht decision on a non-discrtory basis to all CLECs.
300. We deny Staffs exception on ths issue. Whle the approval of the Settement
Agreement may produce an absurd result with dierent crteria for different CLECs, we agree
with the ALJ's fidigs on ths issue. Specificaly, we agree that § 252 of the
Telecommuncations Act of 1996 (Telecom Act) allows pares to enter into negotiated
argements for individua interconnection agreements (lCAs) and these negotiated ICAs need
not comply with the Federa Communcations Commsion's (FCC) implementation of
unbundlg obligations. Therefore, Qwest and the Joint CLECs have rightfy entered into a
Settement Agreement tht conta negotiate languge for their individua ICA amendments.
301. However, Qwest is requied to file the Commssion-approved te, conditions,
and list of non-impaid wie center in its wholesale taff and its Statement of Generally
Available Term and Conditions (SGAT) and/or its ICA Negotiations Template. See Issue 12
below. Ths requiement wi acomplish two thgs. Firt, it will ensur tht al CLECs are
inormed as to the Commssion approved default list. Second, it will protect agait any
potential discriatory treatment of CLECs contrar to § 251 (c )(3) of the Telecom Act.
3. Staff and the Joint CLECs: The Commission should order further
proceedigs to implement the ordered methodology for the
Northglenn Colorado Sprigs Mai and Denver East wie centers.
302. Staff's second issue on Exceptions concer the application of the AU's method
for determg non-impairent statu. Staff states that it does not tae exception to any aspect
of the method set fort by the ALJ in the Recommended Decision, Sections D though G
However, Staff maita tht the method ordered was a hybrid of the positions advocate by the
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
5
Before the Publie Utilities Commssion of the State of Colorado
Dedsion No. C08-0969 DOCKET NO. 06M-080T
varous pares and there is no evidence to support the classification of the thee dispute wire
centers: Nortglen, Colorao Sprigs Mai, and Denver East.
303. Staff requests tht we order Qwest to detee the Tier statu of the Nortglenn
wie center and the DS3 loop non-impaient statu for the Colorad Sprigs Mai and Denver
East wie cente in accordace with the method approved. Furer, Staff requests that Qwest
provide these fidigs to pares and the Commssion with 30 days so that pares may then
contest the fidigs and provide suggestions on fuer proceures with an additiona 30 days.
304. The Joint CLECs also rase ths issue in exceptions. The Joint CLECs request
tht Qwest work with pares to detee the proper statu of the Nortglen wie center and the
DS3 loop non-impairent statu of the Colorado Sprigs Main and Denver East wie centers
based on the business line count method in the Recommended Decision.
305. Qwest taes the position in its Response tht we should reject the ALI's decision
on the countig of business lines, so tht no recalcuation is necessar.
306. We grt this exception in par. Sta is correct tht Qwest sha apply the
business lie count method as ordered in ths docket to the th conteste wie cente to
determe whether the wie cente are impaied with respect to any UNs. However, we
disagree with Staffs suggestion of fuer proceedigs. Intead we agree with the Joint CLECs
that Qwest shall work off-line with pares to mae ths deteration and then fie the completed
list for inclusion in its wholesale taff. See Issue 12. If pares disagre with Qwests results,
then they may file a protest to tht Advice Lett filig.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
6
Before the Public Utiities Commission of the State of Colorado
Deeision No. C08-09Ci9 DOCKET NO. OCiM-080T
Joint CLECs: The effectve date of non-impaient designations for
some wire centers should be no earlier than July 8, 2008.
307. The Joint CLECs asser in their exceptions that, for a number of wie centers,19 the
4.
effectve date be no earlier th July 8, 2005 because Qwest did not request the addition of these
wie centers to the non-impaied wie center list prior to tht date. Tht is the date when Qwest
notified the FCC and CLECs of the classification of wie centers and that is the date on which
the trition period and rates prescribed by the FCC should begi. The Joint CLECs assert tht
we should reject Qwests proposal to retroactively clasif these wie centers.
308. The Joint CLECs alo conted tht, if the Colorao Sprigs Mai and Denver
East wie centers ultiately are classified as non-impaied for DS3 loops~ the effective date of
those classifications should be the date of Commssion approval. The Joint CLECs state that
Qwest never formly asked for these classifcations.
309. Qwest, in its Response, notes tht the Trienal Review Remd Order (TRO)
requies that the effective date for these intial non-impaient designtions be Marh 11,2005,
which is the effective date of the TRO. The Joint CLECs' arguent ignores the fac that the
fiber-based collocations for these parcuar wie centers were al operational as of Marh 11,
2005. Accordig to Qwest, the Joint CLECs~ contention that some wie cente should have an
effective date coincidig with the date that Qwest notified the FCC and CLECs of the
classifcation ignores the fact that the FCC did not requie tht incumbent local exchange caers
(IECs) provide notice to CLECs, or tht ILECs produce a list of non-impaied wie cente by
March 11, 2005.
19 The Joint CLECs state that the followig wi cente should be classifed as Tier 2 frm Marh 11, 2005
to July 8, 2005 and Tier 1 af July 8, 2005: Caitol Hi, Colora Sprgs Mai Pieview, and Sulvan. The
followig wie centers should be clasifed as Tier 3 frm Marh 11, 2005 to July 8, 2005 and Tier 2 af July 8,
2005: Denver Southea and Laewoo
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
7
Before the Public Utiities Commssion of the State of Colorado
Decision No. COB-O'6'DOCKET NO. 06M-OBOT
310. Furer, Qwest argues tht, as for the Colorao Sprigs Main and Denver East
wie centers, the Joint CLECs' reaonig on ths point is ironic because Qwest origily filed
2003 business line data in support of its case and the CLECs argued tht 2004 data should also
be reviewed. It is because of ths review that Colorao Sprigs Mai and Denver East were
aded to the list of non-impaied wie centers for DS3 loops. Accordig to Qwest, the Joint
CLECs should not be allowed to have it both ways. Qwest states that it could not have given
notice about these two wie cente since they were added durg the investigaton of ths docket.
311. We deny ths exception. Qwest gives an accurte interpretation of the TRO and
the effective date of the intial list of non-impaired wie cente. The Joint CLECs make an
incongrous arguent in advocatig durg the proceeg for 2004 data to be used which
resulte in a change to Qwests proposed list, but then also suggestig a late effective date for
those contested wie centers. The TRO effective date for the enti intial list is the most
logical choice includig the results of the impaient anysis for DS3s for the Colorado Sprigs
Main and Denver East wie centers, as the fidigs for those wie centers were par of the same
intial proceedig.
S. Joint CLECs: The Commssion should clari whether the notice
provisions apply to both high capacity loop non-ÏDpairment
thresholds as weD as to a wie center's tier status.
The Commission should clari the transition period as ordered by the ALJ.
312. The Joint CLECs request that the Commssion clarfy a porton of the
Recommended Decision conceg notices to the CLECs. The ALI ordered Qwest to provide
notice to all CLECs, Sta, and the OCC when Qwests records reflect fiber-based collocations
with one connecton of chagig impaient tier or 5,000 business lines of changig
impaient tier. The Joint CLECs seek clarfication that ths notice provision wil apply both to
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
8
Before the Public Utilities Commission of the State of Colorado
Decision No. COB-l969 DOCKET NO. 06M-OBOT
tier designations and non-impaied loop designations. Tier designtions affect the avaiabilty of
UN trport, while non-impaied loop designtions impact the availabilty of DS 1 and
DS3 loops.
313. The Joint CLECs also seek clarcation with regard to the trsition period after a
wie center ha been designted as non-impaid. The Joint CLECs recommended a one-year
tranition period with an interi rate of 115 percent of the UN rate applied to facilties
impacte by the non-impaient or tier designtions. The Joint CLECs request tht the
Commssion clarfy whether the ALJ ordered some tie perod for trsition of facilties.
314. Qwest stresses tht because the Commssion should reject the ALl's decision
concerg notice to CLECs as soon as Qwests records reflect fiber-based collocations with
one connection of changig impairent tier or 5,000 business lies of chagig impairent tier,
the Commssion should also reject the Joint CLECs' asseron tht the notice should apply to tier
designations and non-impaired loop designtions.
315. Furer, Qwest asser tht the exteded trition perod proposed by the Joint
CLECs is unwarted. The intial trition under the TRO was necssar because the FCC
understood that the intial trition would have a more signficant effect on CLECs. Qwest
states that subsequent additions to the non-impaied list of wi cente will involve a much
smaller subset of servces and are likely to involve only one or two wie center at a tie. As a
resut, the trition period should be established at much shortr perods such as Qwests
recommendation of 90 days to trition existig DS 1 and DS3 UNs and 180 days to trition
dak fiber.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
9
Before the Publie Utilities Commssion of the State of Colorado
Decision No. C8B-8969 DOCKET NO. 86M-8B8T
316. We clafy, as requested by the Joint CLECs, that the notice provision ordered by
the ALJ applies to both high capacity (DSI and DS3) loop non-imairent, as well as a wie
cente's tiered status for UN tranport.
317. Furer, we clarfy for the pares tht the ALJ did not order a specifc trition
period or an interi rate for wie cente aded to the non-impaient list in the futue. His
decision on ths issue was tied closely to his decision on the notification tht Qwest is required to
provide to CLECs, discussed above. The ALJ found that no par ha shown a basis from the
TRRO or any other source upon which a trition period for futu additions should be
imposed. See' 127 of the Recommended Decision. Therefore, he left it to Qwest and the
CLECs to negotiate a tranition. However, by reuig notice of impendig non-impaient, he
gave the CLECs access to inormation for plang puroses.
6. Joint CLECs: The Commsion should clari that Qwest cannot
implement a process for rejectg CLEC orders without either
agreement from CLECs or approval from the Commission.
318. The Joint CLECs' :fl issue on exceptions concer Qwests abilty to reject
CLEC orders for UNs once a wie center ha been approved as non-impaired. The Joint
CLECs seek clarfication that Qwest canot implement a process for rejectig CLEC order
without either agreeent from CLECs or approval from ths Commssion. However, the Joint
CLECs fuer asser tht under the TRO, a CLEC may place a UN order in any wie center
as long as the CLEC self-cerfies tht it is entitled to order tht UN, and Qwest must provision
tht UN, subject to later converion to a taed servce.
319. The Joint CLECs argue that Qwest misses the point when it contends tht, once
the Commssion approves Qwest's cerfication of a wie cente as non-impaired Qwest should
be permtted to reject orde. The Joint CLECs assert tht the bettr process is if a CLEC err
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
10
Before the Public Utilities Commission of the State of Colorado
Decisiou No. C08-0969 DOCKET NO. 06M-080T
and order a non-impaid facilty wher the facilty was not available, but Qwest processes the
order, the CLEC will still be obligated to pay Qwest the rates for altetive servces, but the
provisionig of the servce to the customer will not be impacted.
320. Qwests position is that, if the Settlement Agreement is not approved, CLECs
should not be pertt to place - and Qwest should not be requied to fill - a UN order in a
wie center the Commssion ha declared to be non-impaired: The Joint CLECs want Qwest to
be responsible for an order "mistaeny" placed in a non-impaied wie center, with Qwest being
requied to fill the order and challenge the order afer that. However, Qwest matas that it
should not be the "gutot' of a CLEC "mistae."
321. Furer, Qwest quotes Sta witness Notaan when she states in testiony tht
"it should no longer be necessar for CLECs to self-certfy tht they have undeen a
'reasonably diligent inqui' prior to submittg a request for a UN and, in tu Qwest would
not need to process the CLEC request and dispute it afr the fact" as the Commssion order an
update to the list of non-impaied wie cente. Qwest agrees with ths statement.
322. We deny the Joint CLECs' exceptions on ths issue and clarfy tht Qwest can
reject an order if it is made in a wie cente for a UN tht the Commssion has approved as non-
impaied. Ths process is tied diectly to our decision on Issue 12. The CLECs will have the
abilty to search the Qwest wholesale taff and its SGAT and/or ICA Negotiations Template for
the Commssion approved list of non-impaied wie centers. With easy access to ths
inormtion, Qwest should not have to tae on the burden of policing and disputig UN orders.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
11
Before the Public Utilities Commission of the State of Colorado
Decision No. C08-0'6'DOCKET NO. 06M-080T
7.Qwest: The Commission should approve the pares' Settement
Agreement as a resolution of al issues in this docket.
323. Qwest asser in its exceptions that the Commssion should approved the pares'
Settement Agreement as it sets fort which wie centers are to be declaed non-impaied today,
and the methodology and process to be used to declare wie cente to be non-impaied in the
futue. Qwest states that the Settlig Pares did not seek Commssion approval of the term of
the Settement Agreement as a substative decision on the merts of the docket. The Settg
Pares stated though the proceedig tht they would view ths as a breach of the Settlement if
Qwest were to tae that position. Qwest now states that it disagrees with tht position and
believes that the Commssion should reject the Recommended Decision and fid tht the
Settement genery reflect a reaonable, legally sound resolution of the substative issues in
the docket.
324. Furer, Qwest asser that the ALI's fidig that Section VI of the Settlement wil
bind the Commssion in futue proceedigs is not accurte. Qwest states that Section VI merely
establishes the rights of the Settlig Pares with each other and the Commssion remains free to
do whatever it deems appropriate.
325. The Joint CLECs state in their Response tht ths asseron by Qwest is the
opposite of Qwest's previous commtments. The Settlement Agreement itself provides tht the
compromise does not represent the position tht any settlig par would tae if ths matt were
not resolved by agreement. Accordig to the Joint CLECs, it is not supposed to be used as
evidence, but tht is exactly how Qwest is attptig to use it here.
326. The Joint CLECs assert tht the Commssion should not permt Qwest to violate
its commtments and the Colorao rue in ths maner. If the Commssion is going to detere
a generlly applicable methodology, it nee to be based on the evidence going to the merts and
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
12
Before the Public Utilities Commission of the State of Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
not on a proposed compromise. If the Settlement Agreement were approved in its entiety as to
the Settlig Pares, a ruing would still be reuired on the merits for the non-settlig pares.
327. Cbeyond states in its Response that the Commssion may not adopt the Settement
as the substative resolution in ths case without confictig with basic priciples of due process,
which ths Commssion ha repeatedly reogned as being a fudaental requisite of the
adversaral system. Qwest has purosefuly misrepresented its clai and then deliberately
ambushed Cbeyond with its proposal that the Settement be used as a substative resolution of
the issues in ths docket.
328. Furer, Cbeyond states that the ALI took volumous testiony and evidence
detaling the multitude of problems with the setement. The doctre of judicial estoppel alo
prevents Qwest from now tag its purortd position because such position is in dit confict
with Qwests representations thoughout ths case.
329. Cbeyond asserts that Qwest's own testiony, though its attrney in ths case,
state that it "canot use this settlement agreement as advocacy in ths docket. I canot say that
the Commssion should use ths settlement agreement as a model to decide the disputed issues in
ths docket. I canot use it as evidece. I canot use it as precedent."2O
330. In addition to Sta's comments in it own Exceptions, Sta states in its Response
tht, because the Settlement has an opt-in provision, there is nothg to prevent Qwest from
ensug that the term of the Settlement apply in ths and all futue wie center non-impaient
designation requests. The Commission would also be sanctionig the abilty of Qwest to use the
position set fort in the settlement as a bargag position for other ICA mattrs wholly
20 Report's Tracrpt of Heag held on Augut 21 and 22, 2007, Docket No. 06M-OSOT page 7.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
13
Before the Public Utilties Commission of the State of Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
unelated to the issue of wie cente impaient. If alowed Sta anticipates that Qwest wil use
the settlement on its web-based template agreement.
331. We deny ths exception. The Settlement Agreement was never offered in ths
docket as a resolution of the issues for all CLECs, pares, and non-pares to the docket. As the
Joint CLECs state, ths Settlement was a compromise between the Setting Pares who
individually negotiated their positions. Ths was not a decision reahed on the merts based on
law.
332. Furer, Section VI of the Settement Agreement was properly rejected. The
Settg Pares canot bind the Commssion to a tye of futue proceedig or specific tielies
for that futue proceedig. Whe Qwest states that only the Settling Pares ar bound and not
the Commssion, by default the Settlig Pares are improperly defig the proceedig, its
tieline, and the inormtion requied.
8. Qwest: Residential and non-switched access lies should be included
in the count of business lies.
333. The AU held that the UN loop component of the business line calculation by
wie center was to be modified to exclude residential and non-switched lines.21 In arvig at that
determtion, the AU anlyzed the languge of 47 Code of Federal Regulations (C.F.R.) § 51.5
which defies business lies as follows:
A business lie is an incubent LEC-owned switched access line used to serve a
business customer, whether by the incumbent LEC itself or by a competitive LEC
tht leases the line from the incumbent LEC. The number of business lies in a
wie center shall equal the sum of al incumbent LEC business switched access
lies, plus the sum of al UN loops connected to tht wie cente, includig UN
21 Recmmende Decision at' SO.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
14
Before the Public Utilties Commission of the State of Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
loops provisioned in combintion with other unbundled elements. Among these
requirements, business lie talies:
(1) Shall include only those access lines connectig end-user cutomers with
incubent LEC end-offces for switched serces,
(2) Shall not include non-switched special access lies,
(3) Shal account for ISDN and other digita access lines by countig each
64 kbps-equvalent as one line. For example, a DSI line corresponçl to
24 64 kbps-equivalents, and therefore to 24 ''business lies."
47 C.F.R. § 51.5.
Accordig to the ALl's anysis, "(th)e fit sentece of the rue genery defies a business lie
as a switched access lie used to sere a business cutomer. The second sentence defies how
business lies wi be talled on a wie center leveL. The thd sentece applies thee tay
modifications."22 Consequently, the ALl concluded that the proper method to read the reguation
is that business lies are identied and talied by wie center prior to consideration of the thee
enumerted modifications.
334. In the AU's anysis of 47 C.F.R. § 51.5, he found tht the meang of the phre
"business lie" is ambiguous, based on the defition in the fit sentece and the inclusion of the
phre "all UN loops" in the second sentence. Becuse "al UN loops" could apply to those
loops used for business and residential uses, the AU concluded that it may appear that the phre
"business lies" in the second sentence is meant to include all UN loops without regard to use
of the lie.
335. However, in weighg the meang of the languge of the reguation, the ALJ
fuer reasoned tht the fit sentence is clear in its defition of the ter "business lie," and
where the languge of the reguation is clear and unambiguous, it is not for ths Commssion to
22 Recommende Decison at 1 51.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
15
Before the Public Utilities Commission of the State of Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
interet or apply an inconsistent alterntive. Accordig to the AL's reasonig, to include
residential loops in the cour of business lines in a wi cente would imperssibly confct with
the fit sentence and would not give meang to the entie rue. Consequently, the ALJ
detered tht the term "business lies" in the second sentence must restrct the subsequent
phre "such that all UN loops must be confed with the scope of business line as defied in
the fit sentece of the pargrph."23 The ALI deteed that in the absence of explicit
adoption, it canot be demonstrated that the FCC inteded to include residential UN loops in
the impaient analysis. As such, the AL concluded tht given the plai languge of 47 C.F.R
§ 51.5, it is ilogical to conclude tht a residential lie is a business lie. A non-switched UN
loop providig servce to a residential customer confcts with both the fit sentence of the rue,
as well as the thrd sentence; therefore, the UN loop component of the business line calcuation
by wie cente, is to be modified to exclude residential and non-switched lies.
336. Qwest taes exception with ths fidig. Accordig to Qwest, the FCC's TRO
indicates that the count of business lies is to include all UN loops. Qwest argues tht the
majority of public utilities commssion and cour tht have addressed the issue conclude tht al
UN loops should be counted. Qwest fuer accuses the Commssion as sittg as a federl
appellate cour with authority to conduct de novo reviews of FCC decisions by vie of the
ALl's fidigs on ths issue.
337. Qwest also argu tht non-switched UN loops should also be included in the
count of business lines. Accordig to Qwest, the FCC and the TRO make clear tht al UN
loops should be counted includig UN loops provisioned in combintion with other unbundled
elements. Qwest concludes that the intet of the FCC's rues and the TRO was to pert non-
23 Recommende Decision at 169.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
16
Before the Public: Utilities Commission of the State of Colorado
Decision No. C08-0'6'DOCKET NO. 06M-080T
impaient designtions to be made using objecve data aleady created for other reguatory
puroses. As such, Qwest urges the Commssion to include al UN loops in its count of
business lies, includig residential and non-swtched UN loops.
338. In response to Qwest's arguents to include non-switched and residence lines in
business lie counts, the Joint CLECs argues that Qwest focuses on the term "all UN loops" in
the defition of business lies to the exclusion of the rest of the defition. The Joint CLECs
point out tht the first sentence in the defition defies a business lie as a "switched access lie
used to serve a business customer." Furer, the defition indicates the business line shall
include lines "for switched servces" and "shall not include non-switched special access lies."
339. Cbeyond alo taes issue with Qwest's arguents her. Cbeyond assert tht the
business line defition was applied according to its plai meang and the Commssion should
approve the Recommended Decision on that point. Any other readg, accordig to Cbeyond,
would violate the basic rues of statutory constrction.
340. Cbeyond argues tht a plai readg of the thrd sentece of the business lie rue,
givig every word meang in its context, compels the exclusion of non-switched data lies.
Cbeyond taes the position that there is simply no way to read the thd sentence of the business
line defition to mea anytg other th the lite requiements apply to the business lie
calculation described in the second sentece.
341. We agree with Cbyond and the Joint CLECs on ths issue. We fid tht the
ALJ's anysis was well reoned and followed the trtiona canons of statutory constrction.
Regarding the inclusion of non-switched access lies in the lie count for business lies,
47 C.F.R. § 51.5 is clear tht business line counts are not to include non-switched access lies.
As pointed out by Cbeyond, the fit modifier of the reguation provides tht business lie
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
17
Before the Public Utilties Commission of the State of Colorado
Decision No. C08-0!Hí9 DOCKET NO. 06M-080T
. calculations "shal include only those access lines connectig end-user customer with
incumbent LEe end-offces for switched serces." It is self-evident that ths modier excludes
lines providig non-switched serices.
342. Regardig the inclusion of residential lies in the business lie calcuation, we are
persuaed tht it is equay clear tht the FCC's defition of a business line is "an incumbent
LEC-owned switched access line used to serve a business customer ..." Furer, we agree with
the ALJ that the inclusion of residential loops in the count of business lines in a wie center fais
to give meang to the enti rue. The fit sentence of 47 C.F.R. § 51.5 is unambiguous: "(a)
business line is an incumbent LEC-owned switched access lie used to serve a business customer
. . ." To then read the second sentece to mean that the lie count should include al UN loops
regardless of whether they serve a business customer fails to give meang to the entie
reguation. Therefore, we deny Qwest's exceptions on ths point and uphold the ALJ regardig
ths point.
9. Qwest: CLECs that use a CLEC-to-CLEC fiber connection should be
counted as a fiber-based collocator.
343. Qwest argues that the Recommended Decision's resolution of ths issue relies on
an Oklahoma Arbitrtor's recommendation tht has not been reviewed or endorsed by the
Oklahoma Commssion. Qwest matas that ths reliance, therefore, canot stad as legal
precedent. Qwest taes the position that legitiate precedent indicates that cour and
commssions ar mied in their review of whether a CLEC tht leases fiber tranport from
another CLEC is to be counted as a fiber collocator puruat to 47 C.F.R. § 51.5.
344. The CLEC that Qwest desires to count as a fiber collocator is collocated in a
Qwest centr offce. Though the use of a CLEC-to-CLEC cross-connect, the CLEC obtains
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
18
Before the Public Utities Commission of the State of Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
from another carer acess to fiber that leaves the Qwest centrl offce. Accordig to Qwest, the
issue is whether under ths argement, the CLEC "opertes a fiber-optic cable or comparble
tranmission facilty" with the meang of 47 C.F.R. § 51.5. Qwest assert that ths
arangement should be counted as a fiber based collocator.
345. The Joint CLECs, on the other had, argue that Qwest's view that a single fiber
alternative can be counted multiple ties when used by multiple CLECs violates both the FCC's
intent and the FCC's fiber-based collocation rue. The Joint CLECs assert tht the AL's
decision is reasonable and Qwest's request to count a single CLEC's fiber as potentially multiple
fiber-based collocations should be rejected.
346. We deny ths exception. Qwest's proposal would allow for the double countig of
collocators - once for the CLEC actuy collocatig and once for the CLEC dependent on the
fiber of the fit CLEC. Ths dependent CLEC does not meet the defition of a fiber-based
collocator.
10. Qwest: Qwest should be alowed to charge the taried Design Change
Charge when a CLEC convert a UN to an alternative Qwest servce
in a wie center that has been declared to be non-impaied.
347. Qwest disagrees with the ALJ's deteation tht the priciples of cost causation
should gude whether it should be allowed to chare a non-recug charge for converions.
348. Qwest asser tht the foundational concepts of the TRO support the fact tht
Qwest is entitled to assess a non-recug charge when a CLEC requests that Qwest convert a
UN to an alternative Qwest servce. There are two tractions, accordig to Qwest, at issue
when facilties are deemed to be non-impai. Firt, the CLEC teates its existig UN
serce because it is no longer entitled to purhase the UN frm Qwest. Qwest states tht it
does not chage for ths fit traction. Second, the CLEC may choose to purchae altetive
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
19
Before the Publie Utiities Commission of the State of Colorado
Deeision No. C08-0969 DOCKET NO. 06M-080T
servces from Qwest as opposed to choosing one of the other alterntives that are available to it
in that wie center. Therefore, because purchasing from Qwest is at the CLEC's option, Qwest is
entitled to assess a non-reurg chae for the conversion.
349. The Joint CLECs argue that Qwest is wrong in that the FCC made no specific
fidigs of competition or business alteatives in non-impaied wie cente, but intead
developed proxies tht estite wher compettion is liely to exist or able to exist. The FCC
specifically noted tht its methodology was impedect and could over- or under-state competition.
Furer, the Joint CLECs note tht no actul conversion of servce taes place. Only the price
and Qwest's name for the facilty changes - the ac facilty remain unchanged.
Consequently, the Joint CLECs conted tht Qwests request should be rejected
350. In its Response, Sta argues that a review of the evidence in ths record
demonstrtes that Qwest never provided cost data to support its proposed non-recurg charge.
Short of that, Staff assert tht Qwest's requeste non-recurg chage should not be approved
because it does not alocate the cost in accordace with cost causation priciples, is uneasonale
in comparson to other Qwest charges, and does not reflect the requied forward-lookig effcient
processes and syste reflecte in a Tota Serce Long Run Incrementa Cost Study. Furer,
Sta argues tht Qwest's exceptions do not account for the practcal reality for Colorao CLECs,
tht purchaing a Qwest provided servce is liely the only viable option to contiue to provide
seamess serce to its customers durg and beyond the 90-day trsition perod.
351. We deny ths exception. We agree with the AL's reasonig on ths issue. Anon-
impaient detetion will already signficantly increase the recug charges paid by
CLECs to the benefit of Qwest. We fid no reason to require an additional non-recurg chage.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
20
Before the Public Utilities Commssion of the State of Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
Qwest: The Commision should reject the requirement that Qwest
provide notice to the CLECs when its records reßect fiber-based
collocations withi one connection of changig impaiment tier or
5,000 business lies of changig impaiment tier.
352. Qwest mainta that the Recommended Decision does not really address the
11.
substative arents agait the prior notice requiement. Qwest asser that providig such
notice is not reasonable, practical, or usefu. Furer, Qwest states that even if it were to notify
CLECs that a wie center was with 5,000 lies of non-impairent status, there is no guantee
tht the wie center would ever reach that theshold. Ths notice may even have a detrenta
effect on CLECs. Accrdig to Qwest, if a CLEC were to tae action based on the advanced
notice and the business lies in the wie center did not incrase fuer to indicate non-
impaient, the CLEC would have made a poor investment decision.
353. Qwest proposes tht the fiing of a notice with the Commssion tht it is seekig a
chage in wie center designtion should be notification enough for the CLECs.
354. In the Joint CLECs' response, they conted tht it is reasonable for all pares to
have access to the same informtion regardig potetial non-impaient classifications. There is
no disagreement with Qwest's arguent that a wie center within 5,000 lines or a single
collocator of the theshold requiements could never meet that threshold. However, accordig to
the Joint CLECs, ths does not mean tht the inormation is not usefu to the CLECs. Any
inormtion will result in more inormed decisions on investments. The Joint CLECs ask tht
Qwest's request be dened.
355. We deny ths exception. Whle Qwest maes a valid point that the notification as
requied may not result in a non-impaient fidig for some tie, if at all, the CLECs can use
the inormtion for plang puroses and give it the weight they dee appropriate. Ths
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
21
Before the Public Utilities Commssion of the State of Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
notification requiement is a trade-off for a shortr trition perod once non-imaient is
found.
12. Qwest: The requiement in the Recommended Decision that Qwest
maita its lit of non-impaied wie centers in a wholesale tari or
SGAT should be rejected.
356. Qwest asser that the Recommended Decision's reliance on a state wholesale
taff and an SGAT is misplaced and wrong as a matter of law. Qwest insists tht none of the
documents establishig the scope of the docket notified Qwest tht the obligation to mainta a
wholesale taff of an SGAT would be an issue in ths docket. Qwest taes the position tht such
a requiement is contr to the ver term of the TRO, which maes clear tht non-impaient
determations will be implemente though interconnecton agreements, not state taffs or an
SGAT.
357. Rather th rely on the state wholesale ta, Qwest asks the Commssion to
approve the Settlement Agreement.
358. The Joint CLECs note in their Response that ths issue ha aleady been litigated
in Colorao with the CLECs opposing Qwest's position and pointig out the usefuess of the
SGAT both as an available agreeent and as a stag point for negotiations. Qwest has never
approached the Commssion seekig prior approval to cease offerig the SGAT. Intead Qwest
sought approval to withdrw the taff referg to the SGAT and tht request was denied.
359. The Joint CLECs assert that the requiement to incorporate the Commssion's
fidigs frm ths docket in the taff so that the SGAT and taff are accurte is appropriate.
360. Staff, in its Response, argues tht Qwest is makg a collater attk on Decision
No. C07-1095. The scope of a wholesale taff necessary includes the list of impaied wie
centers so that the list can be applied unformy to all CLECs. Sta asser tht the ALI's
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
22
Before the Public Utilities Commission of the State of Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
decision does nothg more th applies the conclusions from Decision No. C07-1095 to the
context of wie cente non-impaient designtions.
361. Staff assert that Qwests exceptions on th issue should be dened.
362. We deny ths exception. Qwest is requied to mata an acurte wholesale
taff on fie with ths Commssion. In order to provide CLECs with al inormation necessar to
place inormed orders for UNs and other wholesale products, Qwest must include the list of
non-impaired wie centers in ths ta. In adtion, Qwest is requied to mata the same
Commssion-approved list in either its SOAT and/or its ICA Negotiations Template. Ths
requiement is to ensure tht al CLECs begi with the sae approved stag point when
negotiatig individual ICAs with Qwest. In both intaces, CLECs must be able to rely on the
inormtion supplied to know what wie cete have been approved for what non-impaied
statu. Ths decision is diectly related to our decisions on Issues 6 and 11 above.
VI. ORDER
A. The Commssion Orden That:
21. The exceptions filed by Cbeyond Communcations, LLC are grted consistent
with the discussion above.
22. The exceptions fied by Qwest Corporation; Sta of the Public Utities
Commssion; and jointly by DrnCA Communcations, Inc., doing business as Covad
Communcations Company, Eschelon Telecom of Colorao, Inc., McLeod USA
Telecommuncations Servces, Inc., doing business as PAETEC Business Serces, and
XO Communcations Serces, Inc. are grted, dened, or clarfied consistent with the above
discussion.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
23
Before the Publie Utities Commission of the State of Colorado
Decision No. COS-G969 DOCKET NO. 06M-OSOT
23. Qwest Corporation shall fie an Advice Letter and taff pages for inclusion in its
wholesale taff to implement the metodology, term, conditions, zero pricing of non-recurg
charge, and wie center list, as ordered. Qwest Corporation sha make ths fing with 30 days
of the Maied Date of ths Decision on not less than seven business days' notice.
24. Qwest Corporation sha update its Statement of Generaly Available Term and
Conditions and/or its Inteconnection Agreement Negotiations Template to incorporate the same
changes to the methodology, term, conditions, zero pricing of non-recurg charge, and wie
center list, as Qwest Corporation files for inclusion in its wholesale taff. These updates shal
occur contemporaeously with the effective dae of the wholesale taff changes.
25. The 20-day tie perod provided by § 40-6-114(1), C.R.S., to file an application
for rehearg, rearguent, or reconsideration shall begi on the fist day aftr the effective date
of ths Order.
26. Ths Order is effectve on its Mailed Date.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
24
Before the Public: Utities Commission of the State of Colorado
Dec:sion No. C08-0969 DOCKET NO. 06M-080T
B. ADOPTED IN COMMSSIONERS' WEEKLY MEETING
July 30, 2008.
TH PUBLIC UTIITS COMMISSION
OF TH STATE OF COLORAO
Commssioner
G:\ORDER\COS-0969 _ 06M-OSOT.do:SRS
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
25
Decision No. C08-0969
BEFORE TH PUBLIC UTITIS COMMSSION OF THE STATE OF COLORAO
DOCKET NO. 06M-080T
IN TH MATTR OF TH JOIN COMPETITI LOCAL EXCHAGE CARRS'
REQUEST REGARING TH STATUS OF IMAINT IN QWEST CORPORATION'S
WI CENTRS AN TH APPLICABILIT OF THE FEDERA COMMCATIONS
COMMSSION'S TRNN REVIW REMA ORDER.
ORDER ON APPLICATION FOR REHEARG,
REARGUMNT OR RECONSIDERATION
Mailed Date: November 6, 2008
Adopte Date: October 29, 2008
VT. BY TH COMMSSION
A. Sttement
363. Ths mattr comes before the Commssion for considetion of an Application for
Rehearg, Rearguent or Reconsideration (R) to Decision No. C08-0969 filed by Qwest
Corporation (Qwest) on October 7, 2008. Qwest seeks rehearg on all issues rased in its
exceptions to Decision No. R08-0164 and incorporates all arguents made therein. However,
Qwest's Application for RR focuses prily on the Commssion's decision on the method to
be used in counting business lies.
364. Cbeyond Communcations, LLC (Cbeyond) fied a Response to Qwests
Application for RR on October 21,2008. On October 23, 2008, Qwest fied a Motion to Stre
ths Response. Qwest states tht 4 Code of Colorado Regulations 723-1-1308 disallows
responses to Applications for RR. Therefore, Qwest asks tht the Commssion stre the
Response and not give it any considertion as it consider Qwests Application for RR We
agre with Qwest and stre the Response of Cbyond
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
Before the Public Utilities Commission of the State of Colorado
Decision No. COS-O'(j'DOCKET NO. O(jM-OSOT
B. Backgound
365. In Decision No. R08-0164, the Admstrtive Law Judge (ALJ) held that the
unbundled network element (U) loop component of the business lie calculation by wie
center was to be modified to exclude residential and non-switched lines.24 To arve at tht
determtion, the AU anlyzd the languge of 47 Code of Federal Regulations (C.F.R.) § 51.5
which defies business lines as follows:
A business line is an incubent LEC-owned switched access line used to serve a
business customer, whether by the incumbet LEC itself or by a competitive LEC
tht leases the line from the incumbent LEC. The number of business lies in a
wie center shall equa the sum of al incubent LEC business switched access
lies, plus the su of al UN loops connected to tht wie cente, includg UN
loops provisioned in combintion with other unbundled elements. Among these
requiements, business lie talies:
(1) Shall include only those access lines connectig end-user customers with
incumbent LEC end-offces for switched servces,
(2) Shall not include non-switched special access lines,
(3) Shall account for ISDN and other digita access lies by countig each
64 kbps-equivalent as one line. For exaple, a DSI lie corresponds to
24 64 kbps-equivalents, and therefore to 24 "business lies."
Accordig to the ALJ's analysis, "(th)e fit sentece of the rue generlly defies a business lie
as a switched access line used to serve a business customer. The second sentece defies how
business lies will be talled on a wie cente leveL. The thd sentence applies thee tally
modifications.''2 Consequently, the AL concluded tht the proper method to read the reguation
is tht business lies are identified and taed by wi cente prior to consideration of the thee
enumerated modifications.
24 Recmmended Decision at' SO.
2S Recmmende Decision at' 51.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
2
Before the Public Utilities Commission of the State of Colorado
Deeision No. COS-O",DOCKET NO. O'M-080T
366. In the AU's anlysis of 47 C.F.R. § 51.5, he found tht the meang of the phre
"business line" is ambiguous, based on the defition in the fit sentence and the inclusion of the
phre "all UN loops" in the second sentence. Because "all UN loops" could apply to those
loops used for business and residential uses, the AU concluded that it may appear that the phrase
"business lies" in the second sentece is meant to include all UN loops without regard to use
of the lie.
367. However, in weighg the meang of the laguge of the reguation, the AL
fuer reasoned that the fit sentence is clear in its defition of the term "business lie," and
wher the languge of the reguation is clear and unambiguous, it is not for ths Commssion to
interpret or apply an inconsistet altetive. Accordig to the AL's reasonig, to include
residential loops in the cour of business lines in a wi cente would imperssibly confct with
the fist sentence and would not give meang to the entie rue. Consequently, the ALJ
determed tht the term ''business lies" in the second sentence must restrct the subsequent
phrse "such that all UN loops must be confed with the scope of business lie as defied in
the fit sentece of the pargrph."26
368. The ALJ determed tht in the absence of explicit adoption, it canot be
demonstrted that the Federa Communcations Commssion (FCC) intended to include
residential UN loops in the impaient analysis. As such, the ALJ concluded that given the
plain languge of 47 C.F.R. § 51.5, it is ilogical to conclude tht a residential line is a business
line. A non-switched UN loop providig serce to a residential cutomer confcts with both
the fit sentece of the rue, as well as the thd sentence; therefore, the UN loop component of
26 Recommende Decision at, 69.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
3
Before the Publie Utilities Commission of the State of Colorado
Deeision No. COB-09Cí9 DOCKET NO. OCíM-OBOT
the business line calculation by wie cente, is to be modified to exclude residential and non-
switched lies.
369. The Commssion afed the ALI's anysis and dened Qwests exceptions on
ths issue. In Decision No. C08-0969, we found tht the ALI's decision was well reasoned and
followed the trtiona canons of statutory constrction.27
370. Qwest states in its Application for RR tht it appear that the Commission is not
aware of how fudaentay flawed its decision is, and how contr the decision is to the
overwhelmg weight of authority on the issue of how the FCC desires business lies to be
calculated for the purses of determg whether a wie cente is non-impaied. To support
ths arguent, Qwest atthes a feder appellate cour decision, a federl distrct cour decision,
and 12 state commssion decisions that have rued tht business lines should be counted in a
maer consistent with Qwests proposal.
371. Qwest assert tht thoughout the case, Qwest has recogned the appart
inconsistency in the FCC's rue on business lies and ha argued that the proper way to resolve
the inconsistency was to look to the FCC's Trienal Review Remad Order (TO) and the
decisions tht have interpreted the TRO for gudace. Qwest states that both the ALI and the
Commssion have refued to review these authorities.
372. Qwest also argues that the Commssion's decision to exclude residential and non-
switched access lies from the count of business lies simply canot be done using any available
objective set of inormtion. Qwest states that no such inormtion exists. Qwest does not know
27 Commssion Decision No. C08-0969 at TI 52-53.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
4
Before the Public Utilities Commission of the State of Colorado
Deeision No. COS-0969 DOCKET NO. 06M-OSOT
whether a competitive carer uses a UN-Ioop to serve a residential or a business customer, nor
are the competitive carers under any obligation to provide that inormtion to Qwest.
373. Qwest urges the Commssion to grant its Application for RR and modi tht
porton of its order on exceptions tht requies residential and non-switched loops be reoved
from the count of business lines when deterg whether a wie cente in non-impaied.
374. We deny Qwests Application for RR and contiue to aff the ALI's
interretation of the FCC's business lie defition and rue. Ths is the most clear and al1-
encompassing interetation of the FCC's defition and the interpretation tht gives the most
consistet readg of all segments of the defition.
375. Additionay, while the authorities Qwest cites may be peruaive, they are not
bindig for our decision in ths case. It is well-settled tht only decisions by the United States
Supreme Cour interetig federa law ar bindig on state cour, or in ths case, a state
admstrtive agency. See, e.g., Brotman v. Lake Creek Ranch, LLP, 31 P.3d 886, 894
(Colo. 2001). Cour have alo found tht agencies are not bound by other agencies in its
fidigs and decisions. See also Cornelius v. NAACP Legal Defene and Educational Fund, Inc.,
473 U.S. 788, 809 (1985); Underwood v. Shalala, 985 F.Supp. 970, 978 (D.Colo. 1997).
Therfore, the Commssion is not bound by agencies from other states or cour other than
Colorado state cour.
376. In this instace, Qwest atthed decisions of other state commssions and cour
tht have no jursdiction over the Colorao Public Utilities Commssion or the State of Colora.
We fid tht they are not applicable to the facts in ths docket and we are not bound by the
holdigs in these cases.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
5
Before the Public Utilties Commission of the State of Colorado
Decision No. C08-0969 DOCKET NO. 06M-080T
377. Furer, we point out a fudaental flaw with Qwests arguent. As the AU
noted in the Recommended Decision, Qwests own interpretation of the FCC defition is
inconsistent. Qwest argues tht 'al UN loops' should be included in the business line count,
but then read the next par of the defition to exclude Unbundled Network Element Platform
(U-P) residetial lies. Apar from Qwests availabilty of data there is no logical reason to
exclude UN-P residential lies, but include UN-P residential loops. Qwest states tht 'al
UN loops' should be included because it does not have inormtion readly available to it to
exclude residential or non-switched loops. However, the same issue exists with historical UN-P
counts, and thoughout the case, Qwest advocated using a proxy count based on white page
listigs until such tie as it began recordig residential Qwest Platform Plus (QPP) separte
from business QPP. The Commssion adopte ths proxy count. There is nothg to prevent
Qwest from using both a simar proxy for historical UN-Ioops records and a separte order-
trkig for residential and business loops in the futue.
VI. ORDER
A. The Commision Orden That:
27. Qwest Corporation's (Qwest) Application for Rehearg, Rearguent or
Reconsideration is dened.
28. Qwests Motion to Stre the Response of Cbeyond Communcations, LLC is
grte.
29. Ths Order is effectve on its Mailed Date.
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
6
Before the Public: Utilities Commssion of tbe State of Colorado
Dec:sion No. C08-0969 DOCKET NO. 06M-080T
B. ADOPTD IN COMMSIONERS' WEEKLY MEETING
October 29, 2008.
TH PUBLIC UTITIES COMMISSION
OF TH STATE OF COLORAO
Commssioners
COMMSSIONER JAMS K. TAREY
ABSENT.
G:\ORDER\COS-ll64_ 06M-OSOT.do:SRS
Exhibit No. 202
Case No. QWE-T-08-07
D. Denney, Joint CLECs
7
Àri-oia
T-03:632A"-0J;':0091, et al.
Joint CLECsOI-022
INTERVEOR: Coad Comications Co., EscheloIiTelecom of Arizona, Inc.,.
McLeOdUSA Telecomm. SerVices, Inc. ,and XO CQmmicat.ions Services., Inc.
REuEST NO: 022
JointCLEC Request Oi-'022: (Million Direct pages 7 - 91 is there any time
when Qwest changed the. code used toiiintain its inventory of circuits and
did not chnge the embedded 'base of circUits to the new formt?
RESPONSE:
Prior to April 2005:, Qwest did. not require a chagë to the circuit IDs when a
CLC requested conversions from Private Line/Special Access. to EEL; these
circuits retairiedthePriv-te Line . service' code inifiers. However, because
of thedìffidUlty this practice caused with Qwest' S ability to track these
pròducts. correctly in its systems. effective APril 8., 2005, Qwest began
tltilizing ,theinçiustry~tandard .sei;ice code modifiër~ specific to EEL, and
aiso establiShed . service code modifiers specific to Loop Mux Coii (LMC).
Circuit IDs were reqUired to be chaged to reflect the. new service code
modifier!S on all; new.requests, as wel;i as new'conversi()n reque.sts from
Private Lines :to EE/LMC and. chage' orders on: existing EEL/LMC circuits.
Qwest also inilemented . the chages to those: ESt and LMC Lops' in the embeddedbase.
There were soinCLCsthat requsted to opt out .of the chages to their
embedded bas~. whiCh Qwest allowed. Thse circuits reiiining in the EEl:/LMC
etiëddedbasë witha' private Line circuit 1D represent less tha 7% of the
total circuits impcted by the UN :to Private Line conVersions. 'These ..
circuits win retain:their Priv-teLine c:ircuit IDs when they are con:vrted
from EEL/LMC to 'Prìvate Lines.' The conversion . cost study has been adjus.ted
to reflect .those circiiitstbat do not require circuit 1D chages as part of
the conversion process,.
Respondent: Tei:ri Million, StaftDirector
Exhibit No. 203
Case No. QWE-T-08-07
D. Denney, Joint CLECs
Arizon
T-03632A-06-0091, et aL.
Joint CLECs01-023
I:tERVEOR: CÖad. Coniicat"ons Co., EschelonTelecom of Arizona, Inc.,
MaLeodUSA Telecomm. Servioes~' Inc., andXO . Commications' Services, Inc.
REQUESTlìO: 023
(Million :Directpages 7 - 9) Whn Qwest implemeted chages to the circuit ID
in the .embedded based of EEL I LMC' circuits what portion of the impacted
1 iiesbelonged. to CLECs that opted' out of chages to the ci7:cui t 10 of their
embedded basl!d?
RESPONSE':
Please see .thè response to Joint CLCs 01..022; 100% of. the less tha7l of
UN lines thathave..a P:iivate Linl! circuit ID belong to CLCsthat opted out.
of. changes to the' circuitID of their embedded base;
ReÍ!pondent: . TerdMì.iîion, Staff 'Directo;r
Exhibit No. 203
Case No. QWE~T-08-07
D. Denney, Joint CLECs
Arizona
T-03632A-06-0091, et al.
Joint CLECs 01-032
INTERVENOR: Covad Counications Co., Eschelon Telecom of Arizona, Inc.,
McLeodUSA'Telecom. Services, Inc., and XO Communications Services, Inc.
REQUEST NO: 032
(Torrence Direct,. page iilQwest filed a fiber-based collocation list with
the FCC in February 2005. Please clarify the time period represented by tht
fiber based collocation list.
'RESPONSE:
The list of fiber-based collocators included in the FCC filing in Februry
2005 included col locators operatiori through the date of. the filing. .
Respondent: Ryan Gallagher , QwestManager
Exhibit No. 203
Case No. QWE-T-08-07
D. Denney, Joint CLECs
Arizona
T-03632A-06-0091, et al.
. Joint CLECs' 01-033
INTRVEOR: Covad Comications Co., . Eschelon Telecom of 'Arizona, iric. ,
McLeodUSA Telecon. SerVices, Inc:;, and' XO. Commications Services. Inc..
REQUEST NO: 033
(Torrence Directl Did' Qwest include. in its count of fiberbasedcoliocàtions
collocation~to-coilocation arrangements, i.e~ situations where a collocated
carrier does not own or control (under an IRU) transmission facilities
leaving.the wire center but is ~tilizing the fiber facilities of another
carrier: through. a cross~conhect to the second carrier's collocation? If the
answer is yes, pleaSe explain the. rationale and support for counting such.arrangements.
RËSPONSE:
NO.,
ReSpndent: Ryan Gallagher i Qwest Manger
Exhibit No. 203
Case No. QWE-T-08-07
D. Denney, Joint CLECs
(Servce Date Octber 16, 2008)
BEFORE TH WASHIGTON STATE
UTILITS AN TRSPORTATION COMMSSION
In the Mattr of the Petition of:
and
) DOCKET UT-063061
)
) ORDER 18
)
) FINAL ORDER GRAG, IN
) PART, ESCHELON'S PETITION FOR
) REVIW; GRATIG, IN PART,
) QWEST'S PETITION FOR REVIW;
) AFFIRG, IN PART, AN
) MODIFG, IN PART,
) ARITRTOR'S REPORT AN
) DECISION
)
QWEST CORPORATION
ESCHELON TELECOM, INC.
Puuat to 47 U.S.C. Section 252(b)
1 SYNOPSiS. The Commission grants, in part, both Eschelon's and Qwests petitions
for review as follows:
. Affrm the Arbitrator's decision on "discontinuation of order processing and
disconnection" with modifing language agreed to by both partes.
. Reverses the Arbitrator's decision on the definition of the term "repeatedly
delinquent" and adopts Qwest's proposed language.
. Affrm the Arbitrator's decision on "transit record charges and bil
validation" with the modifing language proposed by Eschelon.
. Modifes the Arbitrator's decision regarding the conditions under which
Qwest wil provide "expedites" without a fee and adopts Qwest's proposed
languagefor these "expedites."
The Commission afrm the remainder of the Arbitrator's Report and Decision and
requires the partes to file an interconnection agreement consistent with this Order
within 30 days of the service date of this Order.
Exhibit No. 204
Case No. QWE-T-08-07
D. Denney, Joint CLECs
DOCKET UT-063061
ORDER 18
PAGE 20
51 Finy, Qwest argues that the Minesota Commssion elimated the languge in
Section 7.6.4 because it imposed an additional burden on Qwest. We reviewed the
Miesota Commssion order and conf tht Section 7.6.4 was completely
elimated from that ICA.1OO However, it does not appear tht the Miesota
Commssion did so, as Qwest argues, because the languge imposed an additional
burden on Qwest.101 The Miesota Commssion note tht Section 7.6.4 did not
requie anytg more th tht which was already requied by the Commssion-
approved Section 7.6.3.1.102 Thus the Miesota Commssion concluded "(r)ather
than approve superfuous languge for Section 7 .6.4, the Commssion will simply
declie to approve any langue for that section at aii.,,103 Whle the languge may
also be superfuous here, we conclude tht sufcient confsion has been generate on
ths issue to warant the use of explicit clarg laguge in Section 7.6.4.
5. Conversions.
52 The pares dispute the process for converg circuits provided by Qwest to CLECs
from an Unbundled Network Element ("UNE") platform to another serce
arangement, a process chage which may be necessar as a result of unbundlg
relief granted by the FCC as a resut of the Triennial Revew Remand Order
("TRRO") proceedig.104 In that proceedg, the FCC took steps to elimiate ILEC
unbundlg obligations for high capacity tranport and loops where certin
competitive conditions are observed in parcul ILEC wie centes. In those
instaces wher suffcient competitive altertives to ILEC UNs in a wie center are
available, the wie center is deemed ''non-impaied'' and CLEC access to UNs is
elimted. As a consequence of the FCC's TRO decision, where wie centers are
deemed non-impaied, CLECs must conver from UNs to altemative wholesale
servces to mata operation of existig circuits previously purchaed as UNs.
100 Minesota Commssion Order at 7 (Feb. 4, 2008).
101 Qwest Petition for Review at 12.
102 Miesota Commsion Order at 6-7 (Feb. 4, 2008). We have aly note that the languge
in Secton 7.6.3.1 in ths prceedg is identical to tht approved by the Miesota Commssion.103Id. at 7.
104 In the Matter of Unbundled Access to Network Elements; Revew of the Section 251
Unbundling Obligations of Incumbent Local Exchange Carrers, WC Docket No. 04-313, CC
Docket No. 01-338, Orde on Remad, FCC 04-290 (reI. Feb. 4, 2005) herinftr refer to as
the "Triennial Revew Remand Order" or "TRO. "
Exhibit No. 204
Case No. QWE-T-08-07
D. Denney, Joint CLECs
DOCKT UT-063061
ORDER is
PAGE 21
53 In ths proceedig, the pares disagree about a number of jurdictiona, procedural,
and billig issues regardig UN circuit conversions. First, they disagree about the
Commssion's jursdiction over the term and conditions of converg circuits tht
were provided pursuat to Section 251 (c )(3) of the Act to taffed or contractu
serces to which this provision does not apply. Second, given their polared views
on conversions, the pares differ on the need for a separate or generic proceedg to
address converion-related issues. Thd, the pares hold opposing views on how
conversions should be maged adstrtively; that is, by changig or retaing a
circuit's il in Qwest's operational support systems aftr a circuit is convertd to a
non-UN serce. Finlly, Qwest and Eschelon dispute how biling should be
adjusted to new rates and displayed by Qwest on its bils after circuits are convertd
from a UN platform to alternative servce offerigs.
54 The Arbitrator recommended adoptig Eschelon's proposed contract languge for
conversions because it "ensues that the converions from UNs to non-UNs do not
cause disruption for (Eschelon's) business operations and potential ha to its end
user customers.,,10S The Arbitrtor also concluded that a mechasm alady exists
under which Qwest is compensated for conversion-related activities. Finally, the
Arbitrator noted tht Qwest did not offer alteative contrct language for conversion-
related issues and had opposed effort to have such matters considered in the Chage
Management Process (CMP) for these activities. 106
55 On review, Qwest states tht the term, conditions, and prices for UN serices ar
highy regulated under Sections 251 and 252 of the Act and are subject to different
requiements than taffed servces.107 Consequently, Qwest assert that it uses
separte and distict computeried orderg, inventory, and billg systes for UN-
based serces and different processes to provision these serces.108 Qwest contends
that the disputes tht give rise to this issue result from Eschelon's uneasonable
demands that Qwest underte very costly changes to its systems and provisionig
ios Arbitratr's Reort and Decion at, 91.
106 The Change Mangement Prcess wa cre as a vehicle for helping imlement Secon 271
of the Act and is the vehicle Qwest uses to anounce chages related to te that are not
addrsed in an ICA.
107 Qwest Petition on Review at 13.
108 ¡d.
Exhibit No. 204
Case No. QWE-T-08-07
D. Denney, Joint CLECs
DOCKET UT-063061
ORDER 18
procedures.109 Qwest argues tht Eschelon has not demonstrted that these chages
are necessar, assertg that it has cared out more th 500 conversions in its region
without complait that a conversion caused a servce problem for a CLEC's
customer.
110
PAGE 22
56 Qwest argues tht conversion ofUNs to non-UN servces requie chages to each
circuit il and that it is or should be entitled to recover al of the costs it incur to
faciltate those converions.
111 Qwest also assers that the issue of these conversions
is beyond the scope of an interconnection agreement arbitration and would be bettr
addressed in a separate generic proceedig that would allow all affected CLECs the
opportty to parcipate.112
57 In support of its position that Eschelon's conversion-related languge is uneasonable,
Qwest assert that arbitrators in thee other jursdictions have refused to adpt
Eschelon's proposais.l13 A decision by an arbitrtor in Arona concluded that Qwest
had underten converions without any disruption to CLEC end users and ha
demonstrted a legitite and reasonale reason for its business pratices.114 Oregon
and Miesota Commssions declied to adopt Eschelon's contrct proposal, decidig
instead to review conversion processes in a separte proceedg. 1 is
58 Qwest argues that notwthtadig Eschelon' s inabilty to demonstrate any need for
the chages and the substatial costs they would impose on Qwest, the Arbitrator
inappropriately and without foundation adopted Eschelon' s proposed languge in a
single four-sentence paragrph that does not evaluate Qwests objections or
testiony.116 Qwest asser tht it did not provide alteative languge because its
position is that the statu quo should not be altered.
1 17 Qwest argues tht we should
reject the Arbitrator's ruing and pert Qwest to contiue using separte systems and
109 ld.
no Millon, Exh. No. 51 at 15.
11 ld. at 9.
112Id.
11 Miesota Arna and Orgon.
114 Arna Arbitrtor's Decision at 45, afed by the Arna Commssion (My 16,2008).
ii Oregon Aritrtor's Decision at 44; approved without review of ths issue by the Orgon
Commssion Decision; Miesota Aritrtors' Decision at 38; afed by the Miesota
Commssion Order.
116 Qwest Petition for Review at 15.
11 ld. at 22.
Exhibit No. 204
Case No. QWE-T-08-07
D. Denney, Joint CLECs
DOCKET UT-06306l
ORDER 18
PAGEl3
processes for UNs and taffed services or altetively we should resolve ths issue
in a separte generic docket.1l8
59 Qwest argues that Section 252(b)(4)(C) authories state commssions to serve as
arbitrators but limts that authority to imposing ters and conditions necessa to
implement the requiements of Section 251 of the Act. 1 19 Qwest asser that the UN
converions at issue involve network elements tht the FCC specifcaly removed
from Section 251(c)(3), i.e., high capacity loops and tranport and the conversion of
those elements to alternative taffed servces.120 Accordigly, Qwest argues that the
Commssion lacks jursdiction to impose term and conditions relatig to alternative
servces because Section 251 does not apply to taffed non-UN servces.
121
60 With respect to the process and billig-related aspects ofUN converions, Qwest
states tht high capacity UNs are dierent from serces that CLECs purchase
though taffs and commercial agreements because these products are classified and
priced under distict reguatory schemes; UNs are subject to cost-based pricing
under the FCC's TELRIC pricing methodology and altertive serces are provided
though commercial contrts and taffs at commssion-approved or maket-based
pricing.122 Qwest states that UNs are available only to CLECs whereas alterntive
servce argements are available to CLECs, inteexchage carer, and large
business customer and that it ha developed separte orderg, matenance, and
repai processes for these servces.123 Qwest conteds tht conversions involve
signficant activity with thee different fuctional aras of its orderig and
provisionig organtions.124 Converions involve input from the Serce Delivery
Coordiator, the Designer, and the Servce Delivery Implementer and Qwest must
underte a varety of steps with these job fuctions to assure itself that the data for
the convertd circuit is accurately recorded in the appropriate systems.125 Qwest
assert that if we af the Arbitrtor's recommendation to adopt Eschelon's contrct
languge, then we should also rue that Qwest is entitled to recver the costs
118 ld. at 16.
119 Qwest Pettion for Review at 17.
120 ld. See n. 104.
121 Qwest Pettion at 17.
122 ld. Millon, Exh. No. 51 at 14-15.
123 ld.
124 ld. at 26.
125 ld.
Exhibit No. 204
Case No. QWE-T-08-07
D. Denney, Joint CLECs
DOCKET UT-063061
ORDER 18
PAGE 24
associated with changig the foregoing processes to implement Eschelon' s
demads.
126
61 Eschelon responds that the FCC ha recognzed tht the conversion between
wholesale servces and UNs is ". . . largely a biling fuction (for which the FCC
therefore expects) carers to estblish appropriate mechasms to remit the correct
payment after the conversion request. ,,127 Eschelon also points out tht ths
Commssion also recogned tht opertional procedures should be in the ICA,
fidig". . . it is reaonable to include in the amendment a provision addressing
'operational procedures' to ensure customer serce quaty is not affected by
conversions.,,12S
62 Eschelon argues tht converion ofUN circuits should only involve changig the
rate applied to each circuit, a procedure it argues could be accomplished without
chagig the circut ID. 129 Eschelon' s proposal for re-pricing the convered facilties
would simply requie Qwest to use an adder or suchage and a Universal Serce
Orderig Code (USOC) in the maer Qwest previously used for the converion of
circuits from unbundled UN-Platform (U-P) to Qwests Platform Plus (QPP)
servce offerig.130 Eschelon opposes Qwest's proposal tht these mattrs be
addressed in a separte proceedig because Qwest had previously rejected the
opportty to address these issues though QwestsCMP; a foru in which all
CLECs could have provided inpUt.131
63 Eschelon notes that when Qwest fist convered special access circuits to UNs,
circuit IDs did not change.132 Eschelon contends that ths demonstrtes that there is
no legitimate need for the circuit ID to change when the reverse process occurs and
Qwest convert from UNs to non-UNs.133 Furer, Eschelon asserts that while
126Id. at 27.
127 Eschelon Response at 21 citig TRO at' 588.
128 Eschelon Resonse at 21; In the Matter of the Petition for Arbitration of an Amendment to
Interconnection Agreemen of Veron Northwest, Inc., with Competitive Local Exhange
Cariers and Commercial Mobile Radio Service Providers in Washington, Orer 17, Docket UT-
043013, , 416 (July 8, 2005), afed in relevant par in Orde No. 18 (Sept. 22,2005).
129 Stakey, Exh No. 62 at 142, 148 - 149.
130Id. at 149.
13 Id. at 69.
132 Stakey, Exh. No. 62 at 156.
133 Eschelon Respnse at 22.
Exhibit No. 204
Case No. QWE-T-08-07
D. Denney, Joint CLECs
DOCKET UT-063061
ORDER is
PAGElS
Qwest argues that the two products are subject to different reguatory schemes, are
available to different customers, and are inventoried differently, the fact remas that
afer the conversion Eschelon' s end-user customer is using exactly the same physical
circuit or facilty tht was previously used on a UN basis. 134 Eschelon contends tht
the end-user custmer should be wholly unaware of a conversion because tht process
should simply be a pricing conversion and Qwest should be requied to maintain
existig circuit IDs to prevent the risk of end-user disconnections; a possibilty it
contends is inerent in Qwests desire to process conversions though "disconnect"
and "new serce order" processes.
135
64 Eschelon asser tht past experence shows tht Qwest has the abilty to implement
Eschelon's simpler-pricing approach for conversions; pointig to Qwests
implementation of QPP agreeents. Under the QPP agreements, Qwest does not
physically convert circuits, but simply re-prices the circuits using either an adder or
surcharge for the billig difference between the old and new rates. 136 Eschelon
proposes the same approach for the conversions at issue here.
65 Eschelon argues that Qwest ignores the substatial savigs for both pares in not
needig to physically convert circuits and simply modifyg the billig to reflect the
price differentiaL. Eschelon also assert tht Qwest presented no data in the record to
support its claims about the cost of converions. 13 Eschelon states that the Arbitrtor
found that Qwest will be compensated for conversion-related actvities by the non-
recurg charge for the converion. Eschelon argues tht although the costs of re-
pricing (though the use of a surchage) are minimal, Qwest is being over-
compensated for the conversion.138 Eschelon states that to date, the only arbitrtor to
rue on the merts of the non-recurg converion chages recommended a charge of
$0.00.139 In Arona, the Commssion Staff also recommended a charge of $0.00.140
134 Id.; Stakey, Exh. No. 62 at 151.
13S Eschelon Response at 22.
136 Id.
137 Esche10n Response at 24.
138 The surchage of $25.00 is par of the Settement Agremt fied in Docket UT -073035, In
the Matter of the Petition ofQwest Corpraton, For Investigation Concerning the Statu of
Competition and Impact of the FCC's Trennial Reew Remand Orde on the Competitie
Telecommunications Environment in Washington State, and repsents the rate the pares
reached though compromise. The Settlement was approved by Order 05 entered March 21,
2008.
139 Eschelon Response at 24.
Exhibit No. 204
Case No. QWE-T-08-07
D. Denney, Joint CLECs
DOCKET UT-063061
ORDER 18
PAGE 26
Eschelon states that Qwest is the cost-causer and is the only par benefittg from the
conversion. 141
66 Eschelon argues tht ths aritrtion, not a generc docket, is the proper foru to
address these issues.142 Eschelon notes that while Qwest suggests a generc docket
foru, it next argues tht the Commsion lacks jursdiction over these issues.
Eschelon contends tht it would be unjust for it to have expended resources to
exercise its Section 252 right to obta a ruing from the Commssion in ths docket
only to have to re-litigate these issues in a new docket, where Qwest may agai argue
the Commssion lacks jursdiction. 143 In any event, Eschelon argues tht ths
Commssion has aleady detered tht it has jursdiction, though the Section 252
process, to address the trition away from provisionig elements on an unbundled
basis puruat to the TRO.I44
67 We concur with Qwest tht the Arbitrator's rug on conversions is, at best, spare
and tht her sumar disposition of these issues is ineqte. Although, we
consider each arguent raised by the pares and offer fuer analysis below, in the
end we reach the same result as the Arbitrtor.
68 Commission Jurisdiction. When the FCC considered how to implement changes in
unbundling obligations, it detered that ILECs should not unlaterally change
interconnection agreements, but that carer should negotiate and arbitrate new
agreements in accordace with Section 252.145 The converion from a UN to a non-
UN servce is one such chage in the ILECs' unbundling obligations. In the TRO
proceedig, the FCC stated:
140 AZ Docket Nos. T-03632A-06-0091, et.al, (Oct. 20,2006).
141 Eschelon Response at 24. Reprt and Order and Orde on Remd and Furer Notice of
Proposed Ruleig, Revew o/the Section 251 Unbundling Obligatons o/Incmbent Local
Exchange Carrers, 18 FCC Rcd 16978 (2003) (Triennial Review Order or TRO). The TRO
allows Qwest to stop offerg UNs, but dos not requi it to do so.
142 Eschelon Response at 25.
143 Eschelon Response at 24-25.
144 Docket UT-03013, Orde 17 at' 150, citig TRO, ". 700-701, TRO, , 142 n. 399, , 198 n.
524,' 228 n. 630, , 233, afed, in relevant par, Orer 18 (Sept. 22, 2005).
145 TRO, W 700, 701; TRO, , 233.
Exhibit No. 204
Case No. QWE-T-08-07
D. Denney, Joint CLECs
DOCKET UT-063061
ORDER is
PAGE 27
We expect that incumbent LECs and competig carers will implement
the Commssion's fidigs as diecte by section 252 of the Act.
146
Thus, carers must implement chages to their inteconnection
agreements consistent with our conclusions in ths Order.147 We note
tht the falure of an incumbent LEC or a competitive LEC to negotiate
in good fath under section 251(c)(I) of the Act and our implementig
rues may subject that par to enorcement acon. Thus, the
incumbent LEC and competitive LEC must negotiate in good faith
regardig any rates, ters, and conditions necessar to implement our
rue chages.148 We expect tht pares to the negotiatig process will
not uneasonably delay implementation of the conclusions adopte in
ths Order. We encourge the state commssions to monitor ths area
closely to ensure tht pares do not engage in unecessar delay.
Thus, the FCC specifically anticipated tht disputes about "any" rate, ter or
condition related to conversions would be addressed with the context of negotiatig
or arbitratig changes to existg interonnection agreements.
69 We have previously addressed ths issue. In Docket UT-043013, the Arbitrator
rejected Verion Nortwest Inc.'s arguent that disconnect or conversion charges are
outside the scope of Sections 251 and 252 and state commssion review.149 There the
Arbitrator noted tht ". . . the Commssion specifically provided tht the paries
address though the Section 252 process the trsition away from provisionig
elements on an unbundled basis that the FCC has detered are no longer requied to
be unbundled."lso We affed tht rug.
151
70 Accordigly, it is clear from both the FCC's perpecve and our own that we have
jursdiction to address converion-relate issues. We ar not persuaed by Qwests
arguent that we should refr from exercising jursdction over converions given
the importce of providig CLECs a reasonable trsition process away from UNs
and, more importtly, ensg a seamess or unterrpte effect on serces
provided to their end user.
146 47 U.S.C. § 252.
147 Id.
14847 U.S.C. § 251(c)(I); 47 U.S.C. § 252(b)(5). (Emphais supplied).
149 Docket UT-03013, Or 17 at~ 150.
150 TRO'r 142 n. 399, ~ 198 n. 524, ,r 228 n. 630. Docket UT -03013, Order 17, at'r 150. Ths
issue was not prsente for revew in Docket UT -03013.151 Docket UT-03013, Orde 18, (Sept. 22, 2005).
Exhibit No. 204
Case No. QWE-T-OB-07
D. Denney, Joint CLECs
DOCKT UT-063061
ORDER is
PAGE2S
71 Separate or Generic Proceeding. We next consider Qwest's arguent tht
conversion issues should be addressed in a separate generc proceedg tht would
alow other CLECs to parcipate.
72 Qwest notes that in other Qwest/schelon arbitration proceedigs, several state
commssions have decided to adess conversion issues in a separte proceedg.
Qwest points to Oregon, where in a recent proceedig the Arbitrator rejected
Eschelon's proposed contract languge on conversions and recommended that the
commssion intiate a -generl investigation of Qwest' s conversion process.1S2 The
Oregon Arbitrator concluded that "(T)he evidence presented by Eschelon raises
serious questions as to whether the converion process implemented by Qwest,
apparently without CLEC input, is consistet with the FCC's expectations (for a
seamess trition ofUN products and serces to alterntive serce
argements.)IS3 The Arona Commssion adopted the Arbitrtor's
recommendation to accept Qwests proposal to chage the circuit il durg
conversions and concluded tht there was an insufcient record to evaluate
Eschelon's approach to employ an "addet' and that such a decision is best mae in a
separate rate docket. 154 The Arona Commssion concluded tht, in the conversions
underten to date, Qwest mae the conversions without disruption to the CLEC end-
user customers. iss The Miesota Arbitrtors adopte the Deparent of
Commerce's recommendation to explore these issues in a generic docket and to leave
these sections oftheICA blan.
156
73 Eschelon opposes a separte proceedg argug that, as the Arbitrator pointed out,
Qwest did not seek to address ths issue in its CMP) which is open to all CLECs, but
now argues disingenuously tht all CLECs should have input regardig this issue.
152 Oregon Aritrtor's Decsion at 44. Ths issue was not rased on review and the Oregon
Commssion adopted the Aritrtor's recommendation.153 ¡d.
154 Arna Arbitratr's Decision at 45-4 and afed by the Arna Commssion May 16,
2008.
15S ¡d.
156 Miesota Aritrtors' Decision at 38.
Exhibit No. 204
Case No. QWE-T-08-07
D. Denney, Joint CLECs
DOCKET UT-063O(1
ORDER 18
PAGE 29
74 We fid that regardless of whether other state commssions have chosen to consider
conversion issues in a separate proceedg, we previously concluded that it was
appropriate to use the Section 252 process to address the trsition away from
UNS.1S7 In arbitrtion proceedigs, the pares present the issues they wish the
Commssion to resolve. Here, Qwest and Eschelon included these issues for
Commssion consideration on the joint diputed issue list. Whle the evidence on ths
topic is makedly divere, both Qwest and Eschelon presented testiony and exhbits
in support of their respective positions. It seem patently unair to requie Eschelon
to undergo the tie and expene of "re-litigatig" these issues in a separte docket.
We also conclude that it is an ineffcient use of Commssion resources to intiate a
separte proceedig to consider, agai issues tht were addressed extenively in th
proceedig.
75 Moreover, while Qwest's pri arguent in support ofa separte proceedig is to
receive input from other CLECs on ths topic, Qwest had that opportty in the
CMP, but chose not to do so. 158 Intead, apparently Qwest chose to unlaterally
develop and issue notices of how its obligations regardig UNs had changed since
the issuance of the TROfTO promptig Eschelon to raise the issue in ths
proceedig.
159
76 We do not approve a unlateral process for the trition from UN's to non-UN
taffed products and servces, but as noted above, believe the Section 252 process
more appropriate.l60 Whle the CMP might have sufced for that purose, at ths
stage we will resolve the issue on the record before us for the previously stated
reasons.
77 Lack of Qwest Proposed Language. Next, we address whether Qwest should have
offered alteative ICA languge in support of its position to mainta the statu quo;
a criticism leveled by the Arbitrtor in ruing agait Qwest on ths matter.
157 See n. 154.
158 Eschelon Response at 27; Stakey, Exh. No. 67 at 36-37.
159 ¡d.
160 See n. 149.
Exhibit No. 204
Case No. QWE-T-08-07
D. Denney, Joint CLECs
DOCKET UT-063061
ORDER 18
PAGE 30
78 In arbitrtion proceedigs, each par is responsible for mag its own decisions
regardig the presentation of its position. Some of these decisions may be factu
determations while other are strtegic, designed to present a par'S position in the
best light. We consider the decision of whether to offer alterntive ICA languge in
the latter category. Qwest's decision to decline to offer alternative ICA languge
lits the Commssion's options.
79 In arbitration proceedigs the pares present disputed issues for our considertion,
which represent only the "tip of the iceberg" with respect to the volume of issues
pares ultimately resolve and include in an inteconnection agreement. We never see
the broad spectr of issues unti afer the arbitration and review process have
concluded and the pares submit an ICA for our approval. Ony then do we have the
opportty to view issues the pares resolved though the negotiation process.
80 Dug the coure of an arbitrtion, if we reject a par's priar arguent and that
par has not offered any alternative ICA languge, we are left in an untenable
position. We can either attpt to cr some languge from whole cloth (not
knowig if it will confct with uneen and agreed-upon portons of the ICA) or we
can select from languge offered by the prevaig par because generally, it presents
the least risk of confct with other provisions of the ICA to adopt languge proposed
by the pares. The pares are prvy to the languge in the negotiated sections of the
ICA and are more liely to drft lange tht does not present confict or
controversy where none existed before. It is not unusua, and ths arbitration is no
exception, for pares to present alterntive proposed languge and clearly state the
priar position for which they advocate.
161 If the pri position is not adopted,
we then have the option of selectig among the alteratives proposed by the pares.
81 In ths proceedig, Qwest did not offer altetive languge, relyig intead on its
position tht converion-related languge did not belong in the ICA. Contrar to the
Arbitrtor's decision, however we agree tht Qwests decision to refr from offerig
an altetive proposal is not dispositive. To do so would unairly penize a par for
assertg, as Qwest does here, tht matt are beyond the scope or jursdiction of the
proceedg. Neverteless, for other reasons discussed above, we reject Qwests
161 See, for exaple, the resolution of
Issue 5-13, Review of Credt Stadig, in the Arbitrtor's
Report and Decion at' 6 (which is not rased on review).
Exhibit No. 204
Case No. QWE-T-08-07
D. Denney, Joint CLECs
DOCKET UT-063061
ORDER is
PAGE 31
arguent that conversion-relate issues are beyond our jursdiction or the scope of
Section 252 arbitration.
82 We tu now to the merits of the issues concerning conversions.
83 Change in Circuit ¡D. In considerg whether Qwest may change the circuit il for
products converted frm UNs to alterntive products and servces, we are guded
priarly by the FCC's conclusion that conversion is largely a billg fuction. For
wie centes that are designted as non-impaied, Qwest is no longer obligated to
provide UNs under the FCC's TELRIC pricing methodology and is permtted to
offer alteative servces though commercial contracts and taffs. Qwest notes that
UN and non-UN facilties are subject to different reguatory schemes, available to
different sets of customers, and are inventoried differently. Nonetheless, we canot
escape the fact tht the actu underlyig facilties being used at the tie of
conversion do not chage; only the classifcation of those facilties chages. As
Eschelon points out, customers are served over exactly the same facilties before and
afer the converion. The only change is that Qwest is now entitled to bil Eschelon
for these facilties in a maer dierently than it biled UNs.
84 Accordigly, the issue is whether the requied billg chage is a suffcient basis to
wart a chage in circuit il. We conclude it is not. We are persuaed by
Eschelon's arguent tht Qwest has successfuly convered facilties in the revere
diection; tht is, from a non-UN classification to a UN classification without
alterig the circuit il.162 When Qwest fist convertd special access circuits (which
are non-UNs) to UNs, it did so without alterig the circuit il.163 We agree with
Eschelon tht Qwest should be able to acomplish the revere; a converion from
UN to non-UN, with the same degree of success without alterg the circuit il.
Changing only the classification, and not the circuit il, is consistet with the FCC's
conclusion that these conversions should lagely entail only billg fuctions; tht is,
the rate that is charged for the serce or product is based on a different pricing
mechansm.
162 Eschelon Response at 22; Stakey, Exh No. 62 at 156.
163 ld.
Exhibit No. 204
Case No. QWE-T-08-07
D. Denney, Joint CLECs
DOCKET UT-063061
ORDER is
PAGE 32
85 Furer, we fid tht retag the circuit il appear to be the best method to ensue
tht the tranition from UN to non-UN classification is a seamess tranition.
Although Qwest appears to have conducted a signficant number of conversions
without complait that CLEC customer were disrupted we are not persuaed that
Qwest's use of the curent process alone should gover the outcome of ths issue. We
shae Eschelon's concer tht Qwest's procedure to process circuit il changes
though "disconnectig" the UN and "reconnectig" the non-UN product increases
the risk of problem with either the "disconnection or "reconnection" phae, or
both.l64 That risk may increase as Qwest classifies more wie centers as non-impaied
and the number of conversions increases.165 We agree with Eschelon that the risk of
end-user customer disconnection is inerent in ths processing method. Therefore, we
aff the Arbitrator's ruing on this issue.
86 Conversion charge. The:fl issue is the method to be used to re-price a circuit to be
convered from a UN to a non-UN product and the recover by Qwest of the costs,
if any, for revising its biling inormtion. For re-pricing a circuit, Eschelon proposes
the use of an adder or surcharge to address the difference between the previous rate
and a new rate. Eschelon argues tht Qwest ha amle exprience with ths tye of
pricing chage because it was the method used for the converion of unbundled UN-
P to the correspondig non-UN product, QPp.166 Qwest opposes ths approach and
argues tht it must tae a varety of steps to enure tht the data for the convered
ciruit is accurtely recorded in the appropriate systems. Qwest also assers that its
experience with convertg UN-P to QPP is not representative of the conversions it
now faces.
167
87 Agai, past practice is prologue because it appear that Qwest successfully used the
adder or surcharge method to effect chages from UN-P to QPP. Ths seems to be
an effcient process for implementig the rate changes associated with the conversion
of these products. Whle Qwest argues that its experience with the UN-P to QPP
conversions is not representative of these conversions, we agree with Eschelon that
164 Qwest Pettion for Review at 20.
16S See, for exale, Docket UT -073033, In the Matter of the Pettion of Qwest Corporation for
Commission Approval of2007 Additions to Non-impaired Wire Center List, Order 10, ente
July 30, 2008.
166 Eschelon Response at 23; Stakey, Exh No. 62 at 162-163.
167 Qwest Pettion for Review at 26; Millon, Exh. No.5 1 at 11.
Exhibit No. 204
Case No. QWE-T-OB-07
D. Denney, Joint CLECs
DOCKET UT-063061
ORDER is
PAGE 33
UN-P to QPP conversions were more complex than the curent converions.
Accordigly, we aff the Arbitrtor's rug to implement price changes though an
adder or surchage and Universal Servce Orderg Codes.
88 Although Qwest argues that it must be compensated for the costs associated with
these conversions,168 Eschelon contends that Qwest did not provide any data to
support its cost clai.169 Eschelon also argues that Qwest ignores the signficant
savigs tht will inure to both pares by not chaging circuit IDs and using a
simplified maner ofbiling.170 The Arbitrtor concluded tht Qwest is compensated
for converion-relate activities though the $25.00 converion charge agreed upon in
a separte proceedig. 171
89 Qwest contests ths fidig and conteds tht the agreed-upon conversion chage
relates solely to the costs Qwest incur to receive and process orders from CLECs to
conver from UNs to altertive services. 1 72 Eschelon assers that Qwest is the
"cost-causer" and the only par to benefit from the converions. Eschelon claims
that Qwest is authorized but not required to convert UN products to non-UN
products so there must a pecunar benefit for doing so. 1 73 Whle these asserons are
tre, they do not address the fact that Qwest is entitled to recover the reasonable costs
of converion. The rub, however, lies in determg what those costs might be.
90 Whle Qwest clais it is entitled to recover its costs, it does not provide any data in
ths record to establish what those costs might be. Simlarly, Eschelon claied tht it
would incur some costs if requied to record new ciruit IDs for convertd circuits,
but provided no inormtion to support its position. The Aritrtor ultitely
concluded tht, absent adequate costig evidence introduced in ths proceedig, the
agreed-upon conversion rate of $25.00 deteed in Docket UT -073035 should
compensate Qwest for any costs it may incur to mae the necessar biling
adjustments necessitated by Eschelon's biling proposal.
168 Qwest Pettion for Review at 21.
169 Eschelon Resonse at 24.
170Id.
171 Arbitrr's Reprt and Decision at ~ 90 - 91; Docket UT-073035, Orde OS, Order
A~rovig Settement (Mar. 21, 2008); See also Notice of Finty (Apr. 17,2008).
17 Qwest Pettion for Review at 21.
17 Eschelon Response at 24.
Exhibit No. 204
Case No. QWE-T-08-07
D. Denney, Joint CLECs
DOCKET UT-06306l
ORDER1S
PAGE 34
91 We agree that the $25.00 conversion rate adopted in Docket UT-073035 represents a
reasonable compromise rate for the conversion process at ths tie. Because ths rate
was established durg the negotiation process and was ultitely par of a settement
of all disputed issues in Docket UT -073035, we do not know the detals suroundig
the dervation of the rate. However, it is reasonable to assume that eah par in tht
proceedig adequately represented its own interests in arving at the rate. Consistent
with our decision in Sections 1 and 8 of ths Order, we adopt the $25.00 rate as an
inter rate, subject to revision in an appropriate costig proceedig.
6. Commgled Arangements - Bilg.
92 A commgled argement consists of a UN connected to a taffed serce.174 The
pares dispute whether Qwest should include the UN and non-UN elements of a
Commgled Enhanced Extended Lin (EEL) on a single bil.
175
93 Qwest assert tht it has separte billig systems for UNs and taffed serces and
that it would be an extrrdi burden to include inormtion on commgled
argements on a single bil. 176 In the arbitrtion, Eschelon argued in favor of a
single order, single circuit ID, single bil, and single biling account number (BAN,
177 but alterntively requested tht commgled elements be listed separtely on a
single bil to ensure tht it could mange repai and biling fuctions to its customers'
satisfaction. 178
94 The Arbitrtor rejected Eschelon's preferred proposal and adopte Qwests languge
together with Eschelon' s alternte languge which would requie separate
commgled components to be identified and related.179 Under the recommended
languge, Qwest may requie separte orderig, circuit IDs, and biling for the UN
and non-UN elements that comprise a commgled arangement, but Qwest must
then identify and relate the separte components on the bil and customer servce
174 Arbitrtor's Reort and Decision at , 98.
175 ¡d. at' 115.
176 Qwest cutly assign a single circuit ID to a UN EEL and proposes to assign two cirt
IDs for commgled EELs even where a UN EEL is beig conver to a commgled EEL.
Stear Exh. No. 57 at 79. Deney, Exh. No. 130 at 149.177 Ths is how UN EELs ar provided tody.
178 Deney, Exh. No. 130 at 154.
179 Arbitrr's Rert and Decision at' 118.
Exhibit No. 204
Case No. QWE-T-08-07
D. Denney, Joint CLECs
(Servce Date January 30, 2009)
BEFORE TH WASHIGTON STATE
UTITIS AN TRSPORTATION COMMSSION
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
) DOCKET UT-063061
)
) ORDER 19
)
)
) ORDER DENYG QWEST'S
) PETITION FOR
) RECONSIDERATION
)
)
)
In the Mattr of the Petition of:
QWEST CORPORATION
and
ESCHELON TELECOM, INC.
Pusut to 47 U.S.C. Section 252(b)
1 SYNOPSiS. The Commission denies Qwests petition for reconsideration of three
rulings in our Final Order, Order 18, regarding circuit identification numbers, UN
to non-UN conversion charges, and informational requirements for bils and
customer service records of commingled enhanced extended linh.
BACKGROUN
2 NATU OF PROCEEDING. Ths proceedig involves a request by Qwest
Corporation (Qwest) and Eschelon Telecm, Inc., (Eschelon) to arbitrte an
inteconnection agreement (ICA) under 47 U.S.C. § 252(b) of the
Telecommuncations Act of 1996 (the Act). 1
3 APPEARCES. Lisa A. Anderl, Associate Gener Counsel, and Ada L. Sher,
Seattle, Washigtn, represent Qwest. Gregory J. Kopta Seattle, Washigton, and
Kan L. Clauson, and Gregory Merz, Mineapolis, Miesota represent Eschelon.
4 PROCEDUR mSTORY. Followig an evidentiar heag and briefig by the
pares, on Januar 18,2008, the Arbitrtor entered Order 16, the Arbitrator's Report
and Decision, resolvig all contested issues. 2 Eschelon and Qwest each fied a
i A glossar of acronym and te used in ths Orer is athed for the convenence of rears.
2 The ful procedma hito in ths matter is descrbed more fuy in Order 16 in ths docket and
Exhibit No. 204
Case No. QWE-T-08-07
D. Denney, Joint CLECs
DOCKET UT-063061
ORDER 19
PAGE 3
only if the petitioner demonstrtes tht our order is erroneous or incomplete.s A
petition for reconsideration must also cite to portons of the record and laws or rues
for support of the request for reconsideration, and must present sufcient arguent to
warant a fidig that our order is erroneous or incomplete. Should we grant
reconsideration, we may modify our prior order or tae other appropriate action.6
Issues on Reconsideration.
1. Jurisdiction.
8 For each ruing under reconsideration, Qwest alleges that the Commssion exceeded
the scope of its jursdiction when serg as an aritrtor puruat to Section 252
under the Act. Qwest asser tht feder cours have rued unanously that state
commssions are authoried only to set te and conditions relatig diectly to the
obligations imposed on incumbent local exchage carers (IECs) and competitive
local exchange carers (CLECs) under Sections 251 (b) and ( c) of the Act. 7 Qwest
argues that the Commssion exceeded its lited arbitration authority by: (1) requig
it to use the same circuit identification number for a circuit convered from a UN to
a non-UN servce; (2) adoptig a fee for converions from UN to non-UN
servces; and (3) establishig the content of bils and customer servce records for
commgled UN and non-UN serces (commonly refered to as commgled
EELs).
9 Under Section 252(b)(4)(C), state commssions are authoried to sere as arbitrtors
but are requied to resolve open issues by imposing conditions requied to implement
Section 252( c). The stadads for arbitrtion set fort in Secton 252( c) requie
commssions to impose conditions tht meet the requiements of Section 251. Thus,
Qwest argues, state commssions are lited to resolvig only those issues relatig to
the duties imposed by Section 251 and tht they are neither authoried nor requied to
resolve issues regardig other servces or the company's obligations arsing under
Section 271. Qwest contends tht we erred by not relyig on the languge in Section
252 to determe the scope of our arbitrtion authority.
s WAC 480-07-850(2).
6 WAC 480-07-850(6).
7 See, for exaple, Southwestern Bell Telephone v. Missouri Public Servce Commission, 530
F .3d 676 (8th Cir. 2008).
Exhibit No. 204
Case No. QWE-T-08-07
D. Denney, Joint CLECs
DOCKT UT-063061
ORDER l'
PAGE 4
10 Qwest fuer argues that the Federl Communcations Commssion's (FCC's)
Triennial Review Remand Order (TRO) does not give state commsions authority
over non-Section 251 servces.8 Qwest contends tht we misinterret the TRO's
diectives for transitionig cert UN's from the Section 251 obligations as
allowig states to reguate the terms and conditions of non-Section 251 serices.
Qwest assert that the authority of state commssions is lited to that granted by the
Act, not the FCC.
11 Finally, Qwest contends tht the Commssion has no authority over these issues
because at least some of the non-Section 251 serces Qwest offers for UN
conversions are provided puruat to Section 271 and the authority to regute
network elements and servces under Section 271 rests solely with the FCC.
12 In its answer, Eschelon argues that Qwest erred in frg the theshold question of
jursdiction. Eschelon conteds that the proper theshold question is whether issues
relatig to conversions and commgled arangements fall with the scope of a
CLEC's arbitration rights given that they emaate diectly from the dinution of
ILEC unbundlg obligations under the Act. Eschelon argues that the Commssion
properly concluded that conversions and commgled arangements clearly fal with
those rights and the Commssion's jursdiction.9
13 Eschelon contends that none of the federal cour decisions cited by Qwest deal with
whether UN conversions and commgled arangements fall with the scope of a
CLEC's arbitrtion rights. Accordigly, Eschelon argues the cases are irelevant to
the Commssion's determtion that these issues are with the scope of ths
arbitration. Eschelon fuer argues tht the issue of state authority to enorce Section
271 obligations was not rased by either par in the thee rounds of testiony or the
hearg regardig these issues. Eschelon concludes that while the Commssion has
not asserted authority over Section 271 network elements, the Commssion properly
8 In the Matter of Unbundled Access to Network Elements,' Revew of the Section 251 Unbudling
Obligation of Incumbent Local Exchange Carrers, we Docket No. 04-313, ee Docket No. 01-
338, Order on Remd, Fee 04-290 (reI. Feb. 4, 2005) herein refer to as the "Triennial
Review Rend Order: or "TRRO."9 Order 18," 68-70; Docket UT-03013, Orde 17," 150, 287, and 291.
Exhibit No. 204
Case No. QWE-T-08-07
D. Denney, Joint CLECs
DOCKT UT-063061
ORDER 19
PAGES
determed that conversions and commgled EELs are with the scope of Sections
251 and 252 of the Act and the Commssion clearly has authority over these sections.
14 Eschelon argues that Section 252( c) reqes tht state commssions, in resolvig
open issues, "shal enure that such resolution and conditions meet the requements
of section 251, includig the reguations prescribed by the Commssion puruat to
section 251.,,10 Thus, Eschelon contends, the Act madates state commssions to
enure that their arbitration ruings comply with FCC regutions. Eschelon notes that
the Final Order specifically references Sections 251 and 252 in its discussion of
jursdiction.
1 1
15 Finy, Eschelon notes tht the FCC's Triennial Review Order (TRO)12 and TRO
clearly address the unbundling, interconnection, and nondiscrition obligations of
ILECs under Section 251 of the Act, includig their obligations arsing from the
unbundlg relief granted in those orders, which address both conversions and
commgled EELs. Eschelon contends that while Qwest criticizes the Commssion
for relyig on portons of the TRO and TRO order, Qwest refers to those same
FCC orders to support its position on the scope of the Commssion's jursdiction.
Eschelon argues that the Commssion's interetation is correct.
16 Commission Decisn. Section 251 of the Act diects the FCC to detere the
circumstaces under which components of an ILEC's network must be available on
an unbundled basis. In the TRO and TRO decisions, the FCC also determed the
circumtaces under which ILECs may be relieved of their unbundling obligations.
The FCC specificaly found that ILECs are not to unlately change interconnection
agreements but are to negotiate and arbitrate new agreements in accordace with
Section 252.13
10 Eschelon Anwer at 8, quotig 47 U.S.C. § 252 (emhasis in Anwer). In ths citation the
referce to Commssion mea the FCC.n Orer 18," 68 - 69.
12 Report and Order, In the Matter of Revew of the Section 251 Unbundling Obligations of
Incubent Local exhange Carrers, 17 FCC Red 16978 (2003), vacted in pa reded in
par U.S. Telecom Ass'n v. FCC, 359 F .3d 554 (D.C. Cir. 200). (herei referr to as TRO).13 TRO at" 700, 701. TRO at'r 233.
Exhibit No. 204
Case No. QWE-T-08-07
D. Denney, Joint CLECs
DOCKET UT-063061
ORDER 19
PAGE 6
17 That is exaly the circustace that gave rise to ths proceedig. The intial ICA
between Qwest and Eschelon expired July 24, 2000, but the pares contiued to
operte under that agreement while attmptig to negotiate a new agreement. Whle
those negotiations were underay, the FCC issued its TRO and TRO decisions
regardig ILECs' unbundlg obligations. Thus, Qwest and Eschelon attempted to
negotiate term and conditions of a new ICA that complied with the FCC's intent
under the TRO and TRRO orders, as well as all other provisions in the expired ICA.
The pares reached agreement on may issues naowig the scope of ths arbitration
from more th 250 pages of disputed issues to approxitely 150 pages of disputed
issues. Of the lage number of issues origilly teed up to be addressed in ths
arbitration, only thee relatig to conversion and commgling issues are raised in the
petition for reconsideration.
18 These remaing issues merely address the operational processes attdat to
convertg existig circuits from a UN basis to a non-UN basis. The issues arse
diectly as a consequence of the unbundling relief the FCC afforded ILECs such as
Qwest in the TRO and TRO proceedigs.
19 We reject Qwest's contention that a seres of federal cour decisions, includig a
recent decision by the United States Cour of Appeals for the Eighth Circuit,
14
implicate or place limts on our Section 252 authority with respect to conversions and
commglig. Those decisions are not on point. The cases adess effort by other
state commssions to rely upon state law or Section 271 to impose or address
unbundling issues; a circumtace not present in ths proceedg. Our Fin Order did
not attempt to establish rates or address opertional conditions for Qwests
obligations under Section 271 nor to apply state law in some fashion to reta
unbundling requiements where relief had been grted by the FCC. The issues under
recnsidertion merely addressed the opertional processes attdat to converg
existig circuits from a UN basis to a non-UN basis and fall well with our
authority pursut to Section 252 and the FCC's order revising ILEC obligations
under Section 251.
14 Southwestern Bell Telephone v. Missouri Public Serve Commission, 530 F. 3d 676 (Sth Cir.
200S).
Exhibit No. 204
Case No. QWE-T-08-07
D. Denney, Joint CLECs
DOCKT UT -063061
ORDER l'
PAGE 7
20 As in our Finl Order, we reject Qwest's contention that we exceeded our authority
under Section 252 to address these issues. In that Order, we followed the FCC's
specific gudace to carers and state commssions to address, though the Section
252 process, the transition from UN serces to non-UN serces and estblish any
rates, term, and conditions necessar to implement the changes prescrbed by the
FCC. As envisioned by the FCC, we appropriately exercised our jursdicton to
provide CLECs a reasonable transition process away from UNs and ensure a
seamess effect on servces provided to their end-users.
21 We believe that Qwest contiues to exaggerte the distiction between UN and non-
UN terms and conditions. We reiterate the FCC's conclusion, and our own tht the
pri difference between the two is the rate at which Qwest is entitled to bil for
serices; a rate which was formerly lited by TELRIC pncing. By overstatig the
distiction between UN and non-UN term and conditions, Qwest misinterrets the
basis and scope of our authonty.
2. Conversions.
A. Change in Circuit il.
22 Ou Fin Order concluded that we had jursdiction to address ths issue and tht the
conversion from UNs to alternative products and servces is largely a bilg
fuction. is We reuied Qwest to reta the same circuit identification number, or il,
for conversions, fiding that retag a common circut il appeared to be the best
method to enure that the transition from UN to non-UN classification is a
seamess trsition for CLECs and their end-users.
23 Qwest requests tht we revere our rug because we lack jursdiction to impose a
term or condition for a servce that it does not provide under § 251.16 In addition,
Qwest argues that using a single circuit il number will adverely afect servce, cause
prejudice to other CLECs, and cause fiancial ha to Qwest. 17 Qwest assert that it
explaied in testiony and prior briefs tht separte circuit il numbers are requied
is Orde 18," 67 -70,83 - 85.
16 For a more complete discuion of Commssion jursdiction see" 16 - 20 above.
17 Qwest Petition for Reconsideron at 11.
Exhibi t No. 204
Case No. QWE-T-08-07
D. Denney, Joint CLECs
DOCKET UT-063061
ORDER I'
PAGES
for UN and non-UN products because they are subject to separte reguatory
schemes and are available to different categories of customer. 18 Therefore, Qwest
asserts tht it developed separte and distict computeried orderig, inventory, and
biling systems for these serces.19 Qwest contends tht the differences between
these systems are embodied in the circuit il numbers.20
24 Qwest fuer argues that the Commssion relies heavily on Qwest s past successfu
conversion from special access circuts to UNs to requie it to reta the sae circuit
il number for conversions in ths proceedg. Qwest conteds tht ths conclusion is
incorrect because Qwest found that process unworkable and created a risk of servce
degradtion.21 Qwest argues that our decision is also erroneous because it fids that
the use of different circuit il number increases the risk of problems relatig to
disconnection and reconnection of circuits without recogng tht Qwest converd
nearly 1,500 circuits in 2006 without experencing any problems.22
25 In the alteative, Qwest proposes to chage the alphabetical prefi of circuit il
number whie retaing the remder of the number,23 argug tht ths balances the
needs of both pares whie protectig Eschelon and its customers from serce
problems related to retag the same circuit il number for both UN and non-UN
products.
26 Eschelon responds that the FCC clearly contemplated that converion issues would be
addressed by state commssions under Section 252 of the Act.24 Eschelon fuer
contends that Qwests petition fails to comply with WAC 480-07-850(2) because
Qwest fails to provide citations to the record in support of its clai.2s
18/d.
19/d.
2°/d. at 12.
21/d. at 13.
22 /d. at 13 -14. Whe Qwest rases additional arguents, these arguents are not suortd by
citations to evidence in the record and ar rased for the fi tie on recnsdetion.
Accordigly, these arguents do not meet the stada in WAC 480-07-850 and wi not be
adessed
23/d. at 15.
24 See also" 12 -15 above.
2S Eschelon Anwer at 17.
Exhibit No. 204
Case No. QWE-T-08-07
D. Denney i Joint CLECs
DOCKET UT-063061
ORDER 19
PAGE 9
27 Accordig to Eschelon, converions tyicaly only involve chagig the rate chaged
for the facilty and, in the vast majority of cases, the facilty itself does not change.26
Eschelon contends tht a change in reguatory regie reinorces the need for
converions to be trsparent and emphaizes that while the converion reduces
Qwest's legal obligations relative to UNs, it is Eschelon who bear all the risk of
failure.27 Eschelon argues tht logic dictates that not changig the circuit ID on a
properly operatig existing facilty is less liely to cause servce disrption than
changing the circuit ID.28 Moreover, Eschelon contends that the Commssion
properly evaluated the evidence regardig Qwest's process for converg circuits
from UNs to new private lie serce.29
28 In response to Qwests alternative proposal, Eschelon assert that it is not new; Qwest
rased the same proposal in an Oregon wie center docket in 2006.30 Eschelon
contends that the altertive proposal does not resolve any of the issues Eschelon
rased in ths case.
29 Commission Decision. Havig aleady rejecte Qwests jursdictional arguent, we
conclude that Qwest's other arguents do not comply with WAC 480-07-850.31 The
rue is clear that Qwest mus demonstrte tht our order is erroneous or incomplete
and provide citations to the record in support of its reconsideration clai. Qwest
fais to do so and, save for its alterntive circuit ID proposal which is raised for the
fist time on reconsideration, fais to rase any new arguents not already considered
and rejected by the Commssion. As previously stated, a petition for reconsideration
requies more than a repetition of prior arguents on an issue.
30 Nor is it appropriate to raise for the fit tie in a petition for reconsideration new
options or proposals tht should have been addressed durg the evidentiar phase of
a docket, when they can be fuy vettd though testiony, cross-examation, and
rebuttL. At ths junctue, our consideration is specificaly limited to any erors or
26 ¡d. at 22.27 ¡d.
28 ¡d.
29 ¡d. at 23.30 The decision in the Oregon proceedg was adtted as an exhbit in th proceg: Deney,
Exh. No. 169.31 See~ 16-20.
Exhibit No. 204
Case No. QWE-T-08-07
D. Denney, Joint CLECs
DOCKT UT-063061
ORDER 19
PAGE 10
incomplete fidigs in our previous ruing. Havig not previously considered
Qwest's alterntive circuit il proposal, we canot "reconsider" it here.
B. Conversion charge.
31 In Order 18, we agreed with the arbitrator that the $25.00 conversion rate adopted in
Docket UT -07303532 represents a reasonable compromise rate for the conversion
process and accepte tht rate as an interi rate, subject to revision in an approprite
costig proceedig.
33
32 Qwest reitetes its arguent that we lack jursdicton to address ths issue and assert
tht the $25 conversion charge does not compensate Qwest for UN conversion costs
because those costs were not known at the tie the charge was agreed upon.34 Qwest
asserts that an ILEC must be permtted to recover the costs it incur to provide
interconnection.3S
33 Eschelon agai responds that we have jursdiction to address ths issue and tht Qwest
failed to provide appropriate citations to the record in support of its petition.
Moreover, Eschelon assert tht Qwest did not provide cost stues in ths case
despite the requiement that it do SO.36 Eschelon contends that there is no evidence in
ths record to support a converion charge other th the one adopte by the
Commssion.37 Eschelon also contends that we aleady considered and rejected the
arguents Qwest raises agai here.38
32 In the Matter of the Petition of Qwest Corporaton For Investigation Concerning the Statu of
Competitin and Impact of the FCC's Triennial Reiew Remand Order on the Competitive
Telecommunications Market in Washington, Docket UT -073035, Or 05 (March 21,2008).
Notice of Finty entered April 17,2008.
33 Order 18, ,- 86 - 91.
34 Qwest Pettion for Recnsideron at 17.
35 Id.
36 Eschelon Anwer at 32 - 33. Arbitrtor's Reprt Order 16,1 173.
37 Eschelon Anwer at 33.
38 Id.
Exhibi t No. 204
Case No. QWE-T-08-07
D. Denney, Joint CLECs
DOCT UT-063061
ORDER 19
PAGE 11
34 Moreover, Eschelon argues that Qwest agreed to the converion charge of$25 when it
executed the wie center settement in June 2007.39 Thus, Qwest voluntaly agreed to
a conversion rate before the maer of conversion was detered in this case.
Likewise, Eschelon agreed to the $25 conversion rate at a tie when other
commssions concluded an appropriate rate should be $0.00.40
35 Commission Decision. Consistent with our previous anysis we reject Qwests
jursdictional arguent and fid that it has failed to comply with WAC 480-07-850,
faied to provide citations to the record, and faied to rase any arguent regardig the
conversion charge not aleady considered and rejected. Accordigly, we deny
reconsideration of the conversion chage.
3. Commigled Arrangements - Bilg.
36 In Order 18, we requied Qwest to separtely identify commgled components on
bils and customer serce records, concludig that ths balanced Qwest's need to
appropriately bil for the separate UN and non-UN elements of a commgled
argement and Eschelon's need to enure tht it was being biled properly. 41
37 Qwest requests reconsidertion argug that the Commssion lacks jursdiction to
impose term and conditions on these servces.42 Altetively, Qwest asser that it
is not technologicaly possible to comply with the rug absent signficant changes to
Qwests opertig system and requests a delay in implementation to allow Qwesttie
to assess feasibilty and perorm the requied changes.43
38 Eschelon responds that it has already addressed Qwest's jursdictional arguents.44
Regardig Qwests request for delay, Eschelon believes Qwests claim to be
exaggerated; unsupportd by data or any citations to evidence in the record.4s In
39 ¡d.
40 ¡d. at 35.
41 Orde 18, ~ 97 - 100.
42 Qwest Pettion for Reconsidertion at 18 -19. For a more complete discusion of jursdicton
see ~ 16 -20 above.43 Qwest Pettion for Recnsideron at 19.
44 Eschelon Aner at 36.
45 ¡d. at 38.
Exhibit No. 204
Case No. QWE-T-08-07
D. Denney, Joint CLECs
BEFORE THE MINESOTA PUBLIC UTLITIES COMMISSION
David C. Boyd
J. Denns O'8nen
Thomas Pugh
Phylls A. Reba
Betsy Wergin
Chair
Commissioner
Commissioner
Commissioner
Commissioner
In the Matter of Qwest Corpration's
Argements for Commingled Elements
ISSUE DATE: Marh 23, 2009
DOCKET NO. P-421IC-07-370
DOCKET NO. P-421/C.07.371
ORDER ADOPTING ADMINISTRATIE
LAW JUDGE'S REOMMENDED ORDER
ON MOTION FOR SUMMARY
DISPOSITION
AMENDED NOTICE AND ORDER FOR
HEARIG
In the Matter of Qwest Corpraion's
Conversion ofUNEs to Non-UNEs
PROCEDURAL HISTORY
On June 26, 2007. the Commission referrd the jurisdictional issues in these two related cases to
the Offce of Administrative Hearngs under Minn. Stat. § 14.57 et seq. On Deember 9,2008, the
Administrtive Law Judge filed her Recommended Order on Motion for Sumar Disposition,
finding that the Commission did have jursdiction in both cases and explaining her rens for
rehing that conclusion.
On December i 9, 2008, Qwest Corpration (Qwest) fied exceptions to the Administtive Law
Judge's remmended order. The following paries fied replies supportng the conclusions of the
Administrtive Law Judge: the Minnta Deparent of Commerc; Integr Telecom of
Minnesota Inc.; Eschelon Telecom of Minnesta, Inc.; and the CLEC Coaliton, a grup of
competitive local exchange carers.1 On Marh 3, 2009, the Administrative Law Judge's
Recommended Order on Motion for Summar Disposition came before the Commission.
i The members of the CLEC Coalition ar McLeodUSA Telecmmuncations Servces,
Inc.; POPP.com, Inc.; TDS Metrcom; an XO Communications of Minnesota, Inc.
Exhibit No. 205
Case No. QWE-T-08-07
D. Denney, Joint CLECs
FINDINGS AND CONCLUSIONS
L Threhold Jurisdictonal Issues
The issues in both thee cas stem from deisions of the Federal Communications Commission
(FCC) releasing Qwest and other incumbent local exchange carers frm ealier obligations under
41 U.S.C. §§ 251 (c) (3) and 252 (d) (I) to provide certin services as unbundled network elements
(UNEs) to competitive local exchange caers at cost-baed rates. As seices ar "de-listed" as
UNEs. incumbent carers beome free to chae higher, market-bad rates for thm, even when
these services ar commingled with services that remain UNEs.
In these two cas, competitive locl exchange carers puhasing wholesale services frm Qwest
asked this commission to set rates and terms and conditions of service for the conversion of
specific existing service argements frm UNE-baed facilties to non-UNE-bas facilties and
for the commingling ofUNE and non-UNE service components on a going-forw basis. Qwest
challenged the Commission's jursdiction over these issues, claiming tht exclusive jurisdiction
lay with the FCC.
The Administrtive Law Judge to whom the Commission referr the junsdictional issues in these
cas fraed them as follows:
. Does th Commission have authority with repect to issues arsing over the rates,
terms and conditions for conversions from UNE to non-UNE facilties?
(Docket 01-370)
. Does the Commission have authority with respet to disputes arising over the terms
and conditions for the UNE and non-UNE components and the interrlationship of
them in commingled argements? (Doket 01-311)
After briefing by all paies, the Administrtive Law Judge found th this Commission had
jursdiction in both cas. On the conversion issue, she found as follows:
The Administrative Law Judge ha concluded bad on the provisions of the TR02
and the TRRO,3 tht the FCC has exprsly direted the negotiation of rates, tens,
and conditions relating to converion proesse in interconnection agrments, and
consequently the Commission has legal authority under § 252 to address these
issues in this docket.4 (Footnotes aded.)
2 Report and Order, In the Matter of Review of the Section 25 t Unbundling Obligations
of Incumbent Local Exchange Caers, 18 FCC Rcd. 16978 (2003), vacted in pa remaed in
pa, u.s. Telecm Ass'n v. FCC, 359 F.3d 554 (D.C.Cir. 2004) (TRO).
l Orer on Remand, In the Matter of Review of the Section 25 i Unbudling Obligations
of Incumbent Lol Exchage Carers, 20 FCC Red. 2533 (2005), afd, Covad
Communications Co. v. FCC, 450 F.3d 528 (D.C. Cir. 2006) (TRRO).
.. AU's Recommended Order, p. 6.
2
Exhibit No. 205
Case No. QWE-T-08-07
D. Denney, Joint CLECs
On the issue of commingling, she found:
The FCC has clealy stted that these ar the types of issues to be addrssd in
intercnnection agrents, and the Administrative Law Judge accordingly
concludes the Commission has the legal authority under§ 252 to resolve isses in
this docket relating to the tenns and conditions under which Qwest provides
commngled elements and services.s
The Commission has cafully examined the Administrative Law Judge's reommended order and
the record on which it is bad. Her recommended order is closely rened in its analysis and
compellng in its conclusions; the Commission wil accept and adopt it.
The Commission wil also refer the remaining issue. which relate to rate and tenns and
conditions of service, for evidentiar development, as set forth below.
II. Juridiction aDd Referrl for CODtested Case ProeeediDgs
The Commission has jurisdiction over the remaining substative issues in this cas as set forth in
detal in the Recommended Orer of the Administrative Law Judge, adopted herein.
Th Commission finds that it canot resolve the remaining issues of rates and ters and conditions
of service on the basis of the reord before it. These issues tum on numerous, specific facts that
ar best developed in forml evidentiar heangs. The Commission will therefore amend its
original Notice and Order for Heang to refer the remaining issues in ths cas for contested cas
proceedings.
III. Issues to be Addresed
The remaining issues in this cas relate to appropriate rates and tenns and conditions of service
under 47 U.S.C. § 252 (d), Minn. Stat. §§ 237.09 and 237.12, and related sttutes and regulations.
The paries shal address thes isses in th cour of contested cae proedings. They may also
raise and address other issues relevat to rates an tenns and conditions of service.
iv. ProceduralOutliDe
A. AdmiDistrative Law Judge
The Administtive Law Judge assigned to ths case is Kathleen D. Sheehy. Her address and telepone
number ar as follows: Offce of Administrtive Hearngs, 600 Nort Robert Str St. Paul,
Minnesota SS i 0 i ; (65 i) 36 i -7848. The mailng address of th Offce of Administtive Heangs is
P.o. Box 64620, 8t. Paul, Minesta 551640620.
S AU's Recommended Orer, p. 8.
3
Exhibit No. 205
Case No. QWE-T-08-07
D. Denney, Joint CLECs
B. Hearing Procedure
· Controllng Statutes and Rules
Hearngs in ths matter wil be conducted in accordance with the Administtive Proceur Act,
Minn. Stat. §§ 14.57-14.62; the rules of the Offce of Administrative Heangs, Minn. Rules,
pars 1400.5100 to 1400.8400; and, to the extent that the ar not supeeded by those rules, the
Commission's Rules of Practice and Procedur, Minn. Rules, pas 7829.0100 to 7829.3200.
Copies of these rules and statutes may be purhad from the Print Communications Division of the
Deparent of Administrtion, 660 Olive Strt, S1. Paul, Minnesota 55155; [phone]. These
rules and statutes also appe on the State of Minnesta's website at www.revisor.eg.state.mn.us.
The Offce of Administrtive Heaings conducts contested ca proceings in accrdce with the
Minnesota Rules of Professiona Conduct and the Professionalism Asirations adopted by the
Minnesota State Bar Association.
· Right to Counsel and to Present E\'idence
In these proceings, paies may be reprsented by counsel, may appe on their own behalf, or
may be reprented by another persn of their choice, unless otherwise prohibited as the
unauthrized pratice of law. They have the right to preent evidence, conduct cross-xamination,
and make wrtten and oral arent. Under Minn. Rules, par 1400.7000, they may obtan
subpoena to compel the attndance of witnesss and the production of documents.
Paries should bring to the hearng all documents, records, and witnesses neessar to support their
positions.
· Discovery and Informal Disposition
Any questions regaing discvery under Minn. Rules, par 1400.6700 to 1400.6800 or informal
disposition under Minn. Rules, pa i 400.5900 should be direted to Ganesh Krshn Public
Utilties Rates Anyst, Minesota Public Utilties Commssion, 12 i Seventh Place Ea,
Suite 350, St. Paul, Minnesota 55101-2147, [phone]; or Jeae Cochr, Assistt
Attorney Generl, i 100 NCL Tower, 445 Minnesota Strt, St. Paul, Minnesota 55 101,
[phone].
· Protecting Nol-Public Dala
State agencies ar reuire by law to kee some data not public. Paries must advise the
Administrative Law Judge if not-public data is offere into the rerd. They should tae note that
any not-public data admitted into evidence may beome public unless a pa objecs and requests
relief uner Minn. Stat. § 14.60, subd. 2.
4
Exhibit No. 205
Case No. QWE-T-08-07
D. Denney, Joint CLECs
· Accommodations lor Disabilties; Interpreter Services
At the reuest of any individual, this agency will make acommodations to ensur tht the heang
in this ca is accessible. The agency will appoint a qualified interpreter if neess. Persns
must promptly notifY the Administrtive Law Judge if an interpreter is needed.
· Scheduling Issues
The times, dates, and places of evidentiar hearings in this matter will be set by order of the
Administrtive Law Judge afer consultation with the Commission and th paies.
· Notice of Appearance
Any part intending to appe at the hearng who has not alredy done so mus fie a notice of
appearce (Attchment A)with the Administrtive Law Judge within 20 days of the date of this
Notice and Order for Heang.
· Sanctions for Non-compliance
Failur to appe at a preheang conferece, a settlement conference, or the hearng, or failure to
comply with any order of the Administrtive Law Judge, may reult in facts or issues being
resolved against the pay who fails to appe or comply.
C. Parties and Intervention
The currnt paies to this ca ar Qwest; the Minnesota Depament of Commerc; Integr Telecom
of Minnesta Inc.; Eschelon Telecom of Minnsota Inc.; and the CLEC Coalition. Oter peons
wihing to beome formal paies shall promptly tie petitions to interene with the Administrative
Law Judge. They shall see coies of such petitions on all currt paies an on the Commission.
Minn. Rules, par i 400.6200.
D. Prehearing Conference
A prehearng conference, which may be conducted by telephone, will be scheduled by the
Administrtive Law Judge. The Offce of Administrative Hearngs will infonnthe paies and the
Commission of its time, date, and place.
Paries and persns intendig to intervene in the matter should pacipate in the conferce,
prepa to discss time fres and scheduling. Other matters which may be discusse inlude
the locations and dates of hearng, discvery prour, settlement prospets, and similar issues.
Potential paries ar invited to paicipate in the pre-hearng confernce and to fie their petitions to
intervene as soon as possible.
v. Application of Ethics in Government Act
The lobbying provisions of the Ethics in Government Act, Minn. Stat. §§ i OA.O i et seq" apply to
rate setting ca. Persns appeng in this proceeding may be subject to registrtion, reporting,
s
Exhibit No. 205
Case No. QWE-T-08-07
D. Denney, Joint CLECs
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ATTACHMENT A
BEFORE THE MINESOTA OFFICE OF ADMINISTRTIE HEARIGS
600 Nort Robert Str
St. Paul, Minnesota 55101
FOR THE MINESOTA PUBLIC UTLITIES COMMISSION
i 2 i Seven Place Ea Suite 350
St. Paul, Minnsota 55101-2147
In the MaUer ofQwet Corporation's
Arrgements for Commingled Elements
MPUC Docket No. P-4211C-07-370
P-42l/C-07-371
OAH Docket No. 3-2500- i 907-2
NOTICE OF APPEARACE
In the Mauer of Qwes Corporation's
Conversion of UNEs to Non-UNEs
Name, Addrss, Mailing Addrs, and Telephone Numbe of Administrtive Law Judge:
Kaee D. Sheehy, Offce of Administtive Heangs, 600 Nort Robert Strt, St. Paul,
Minnesta 55101; Maling Addrs: P.O. Box 64620, St. Paul, Minnesota 55164-0620;
Telephone Number: [phone].
TO TH ADMINSTRATIVE LAW JUDGE:
You ar advised that the pay naed below will appe at the above heang.
NAME OF PARTY:
ADDRESS:
TELEPHONE NUMBER AND E-MA ADDRESS:
PARTY'S AlTORNY OR OTHR REPRESENTATIVE:
OFFICE ADDRES:
TELEPHONE NUMBER AND E.MA ADDRESS:
SIGNATURE OF PARTY OR AlTORNEY
~~it No 205
Case No. QWE-T-08-07
D. Denney, Joint CLECs
A IT ACHMENT B
OAH 3-25()19047-2
MPUC P-4211c.Q7-370
& P-4211C-07-371
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE PUBLIC UTILITIES COMMISSION
In the Mattr of Qwest Corporation's
Conversion of UNEs to Non-UNEs
RECOMMENDED ORDER
ON MOTION FOR
SUMMARY DISPOSITION
In th Mattr of awest Corporation's
Arangements fo Commingled
Elements
This mattr is before Administrative Law Judge Kathlee D. Sheehy on
awesrs Motion for Summary Dispositon, fied September 15, 200. The motion
record close October 31. 2008. upon receipt of Cwests Reply Memorandum.
Jason D. Topp, Qwest Cororation. 200 South Fift Stret, Room 2200,
Minneapolis, MN 5502. appeare on behalf of Qwst Dennis O. Ahers.
Associate General Counsel, Integra Teleco, 730 seond Avenue South. Suite
900, Minneapolis. MN 55402, appeare for Integra. Dan Lipschltz, Moss &
Bamett 4800 Wells Fargo Center, 90 South Seventh St. Minneapolis. MN
55402-4129, appeared on behalf of the CLEC Coalition. Linda S. Jense,
Asistant Attrney General, 445 Minnesota Stret. Suit140, St. Paul, MN
55101-2131. appeared on behalf of the Departent of Commerce (Departent).
Based upon all of the files, records, and procedings herein, and for the
reasons explained in the attched Memorandum. the Administrtive Law Judge
makes the following:
RECOMMENDATION AND ORDER
1. IT IS HEREBY RECOMMENDED Uiat awet's Motin for Summary
Disposition be DENIED.
2. IT IS HEREBY ORDERED tht this Recomendation is cert for
final decsion to the Minnesta Puic Utlities Commission.
Dated: December 9, 2008
slKathleen D. Sheehy
KATHLEEN D. SHEEHY
Administrtive Law Judge
Exhibit No. 205
Case No. QWE-T-08-07
D. Denney, Joint CLECs
MEMORANDUM
The Minnesota Public Utiliti Commission opened these dockets to
furter investigate issues that arose during the arbitation of an interconnection
agreement belween Qwest and Eschelon (now Integra). In the arbitrtion
proceeding, Eschelon and Owst disagreed about the appropriate language in
th interconecton agreement relating to Qwsts processes and prices for
convertng unbundled network elements (UNEs)-lch Qwest Is no longer
obligated to offer at TElRIC prces under § 251 of the Telecommunications Act
of 1996-nto servces available (at higher prices) through Qwsl's tari or
through a commercal agreement In additin. the parties disagree about the
approate language reating to Qwest's prosses and prices for proviing
commingled enhanced extended loops (EEls). which are coposed of both a
§ 251 UNE (the loop) and a non-UNE facility (the transport circuit).
Qweit objected to the Commission's asserton of authori over these
issues, and in its order referrng this matter to the Ofce of Administrti
Hearings, the Commission requested that Qwast's lurisdictonai objectons be
addressed before any fuer predings take place., The partes joinUy agreed
to defer consideratin of these issues for a time in order to focus on other
pending dockets.2 They have slighdy refrmed the wording of the legal issues
referred by the Commission.3 And they have furter agreed that Qwest's motion
for summary disposition is the best proceural method for presenting these
jurisdictonal issues and that thre are no geuine issues of material fact that
would prdude resolutin of these issues as a matter of law.4
Legal Issues
1. Does the Commission have authorty wi respec to issues arising
over the rates, terms and condtions for converions frm UNE to non-UNE
facilitis? (Docket 07-370)
2. Does the Commission have autority with respect to disputes
arising ovr the terms and conditions for the UNE and non-UNE components and
the interrelationship of them in commingled arrgements? (Docket 07-371)
Arguments of the Partes
Qwst maintains that state commissions are limited to settng rates, terms.
and coditions for UNEs and other servce that incumbent local exchange
carrrs (llECs) are required to provie puruant to § 251. Because UNE
conversions and commingled EEls involv non-251 seces, state commissons
lack authrity to set rates. tenns. and conditons for thm. It maintains that a
i Notce and Order fo Hearg (June 28. 2007).
i Joit Reqest for Continuanc (Septber 21.2007).
3 Joint Staent of Legaliiiue (May 29, 2008).
4 Firs Preharng Orer 15 (Sepber 12, 2007).
2
Exhibit No. 205
Case No. QWE-T-08-07
D. Denney, Joint CLECs
state commission's ony authority with respec to these arrngements is to
establish rates and terms fo th UNE component of a comingled EEL,
because that is the only component that is within a commission's § 251 authority.
Qwest cites a variety of comiion decisions and federal court decisions for the
proposition that the arbitration authority of state commissions under § 252 only
permit the imposition of terms and conditions for services and UNEs included
wihin § 251. Acrdingly, Qwest cotends the commision "has no jurisdicon
to determine how Qwst should provide th non.251 servces used with UNE
conversions or the non-251 servces used with comminled EELs."s Owt also
maintains that the UNE and non.UNE components of commingled EEls are
subjec to diffrent regulatory schemes and that Qwst cannot be compelled to
provie the non-UNE elements and servces under the "ultr-rgulatory
frmework" of § 251. Finally, Owest maintains that a state commission lack
jurisdiction to estblish terms and conditions for Interstate accss servces,
becuse that Is within the exclusive regulator autority of the FCC.
Integra maintains that the FCC has expliciUy addressed conversion
processes and has made it clear that carrers are to negotiate those processes
through the § 252 arbitrtion procss and that state commissions have the
obligation to address and reolv these issues through that process. In addition.
Integra argues that the FCC has provided guidanc on the pricing and
proceures to be employed, indicating that conversion should be a "seamle"
proces tht does not affect a customets percption of servce quality.
Consequentl, Integra contends the Minnesota Commission has not only the
authority but the obligation to ove this process under § 252. With regard to
comminglin, Integra maintains that because awt is obligate under § 251 to
provie commingled EELs, the Commission has the authori to prohibit Owst
frm erecting operaonal barrers that would make the proce of ordering,
provisioning, and repairing commingled EEls diffcult or impossible for
competitive local exchange carrers (CLECs) to use. Both Integra and the CLEC
Coaliton urge the Commission to follow the approach taken by the Washington
State Utilities and Transportation Board, which concluded that conversions and
commingled arrngements fall wiin the arbittion authority of state
commissions.8
The Departent contends that Qwet has ovetated the distincton
betwn § 251 and non-251 elements, maintaining that converson involves the
process of moving a § 251 element to a diffrent status and that all actties
involve in the proces therefore relate to the cost. provisioning, and pricing of
§ 251 UNEs. over which the Commission has excusive authrity. The
Departent also argues that the Comissin has independent authorty under
state law to ensure that the wholesale pricing of convertng and commingling
noo.251 elements is fair and reasonable.
: Qw Memorandum In Suppo of Motn for Sumary Disposit at 9.
In the Mattr of the Petin of Qnst Corati and Eschlo Tel. Inc., Orr No. 18.
Commssion's Final Orer at ft 68-70,92-108. Doet No. UT.063061 (WC OC 16.2008).
3
Exhibit No. 205
Case No. QWE-T-08-07
D. Denney, Joint CLECs
Analysis
Under 47 U.S.C. § 251, ILECs are required to negotiate in good faith the
tenn and conditions of Interconnection agreents with CLECs and to lease
certain netwrk faciitis at TElRIC rates. If an agrement caMot be negotiated,
the Ac requires that unresolved § 251 disputes be submittd to arbitrtion,
subject to oversight by state public serv commissions. Initially, the FCC took
the positon that ILECs had to -unbundle- and provide most basic netwrk
elements at TELRIC pnces. Since then. the FCC has changed its analysis of
unbundling and interconnecton obligations and has progressively Hmlted the
number of netwrk elements ILECs must provide under § 251. Thoe chnges
were announced in 2003. in the Triennial Review Order (TRO).7 and in 2005. in
the TrieMial Review Remand Order (TRRO).8 The issues in this case arise as a
result of th FCC's de-lsting of certin § 251 elements in those orders, which
have required ILECs and CLECs to address both the conversion of a produc
originaly provided as a UNE to an altematie sece arrangement and the
commingling of a UNE with another product.
Conversions
In a sect of the TRO addresse to the scope of unbundling
obligations. the FCC addressed conversion issues as follows:
We decline the suggestins of several partes to adopt rules
establishing specific procedures and processes that incumbent
LECs and competive LECs must follow to convert wholesale
services (e.g.. special accss seces offer pursuant to
interstate tariff to UNEs or UNE combnati, and the reverse.
i.e., covertng UNEs or UNE combinations to wholesale servces.
Because both the Incumbet LEC and reuesting carrers have an
incntive to ensure corrct payment for servs rendered. and
because both pares are bound by dutis to negoUate in goo faith,
we conclud that these carrers can establish any necessary
prcedures to pedorm conversns wih minimal guidance on our
part.'
. . . Convertng betwen whoesale services and UNEs or UNE
combinations should be a seamless pross that does not affct
the customer's percption of sece quality. We reconize that
conversons may incrase the risk of servce disruptions to
1 Report and Order. In th Afstteof Reviw of the Sec 251 Unbudling Obls of
Incumbent Locl Exchng Catrs, 18 FCC Red. 16978 (200), vacat in pa, remancl in
~. U.S. Telm Ass'n v. FCC, 359 F .3d 554 (D.C.Cir. 2004) (TRO).
Orer on Rema, In the Mater of Reviw of the Secio 251 Unbu Obliatios of
Incumbe Locl Exchang Carrs, 20 FCC Red. 2533 (205), strd. Co Cønlctio
Co. v. FCC, 450 F.3d 528 (D.C. Clr. 2006) (TRRO).
· TRO 1585 (emphasis adde) (fo omlU.
4
Exhibit No. 205
Case No. QWE-T-08-07
D. Denney, Joint CLECs
competitive LEC customers because they oftn require a
competitive LEC to groom interexchange traffc off circuits and
equipment that are already il use in ordr to comply wi eligibilit
crteria. Thus, reuesting carrers should establIsh and abide by
any necssary operational proures to ensure customer seiviee
quality is not affcted by conversons.10
. . . We recoize . . . that once a copetitive LEC start servng a
customer, there exists a rik of wasteful and unnecessary charges,
such as termnatin chrges, ..connect and disconne fees, or
non.recurrng charges associated with establishing a servce for the
first tie. We agree that such chares could deter legitimate
conversions from wholesale servces to UNEs or UNE
combinations, or could unjustly enrich an incumbent LEC as a
result of convertng a UNE or UNE combination to a wholesale
servce. Because incumbet LECs are never required to perform a
conversion in order to cotinue servng thir own custoers, we
conclude that such chges are inconsistent with an incumbent
LEC's duly to provide noniscriminatory accss to UNEs and UNE
combinations on just. reasonable, and nondiscriminatory rates.
terms, and conditions. Moreover, we conclude tht such charges
are inconsistet with sectin 202 of the Act. which prohibit carrers
from subjecting any person or class of persons (e.g., competitie
LECs purchasing UNEs or UNE combinations) to any undue or
unreasonable prejudice or advatage.1'
We conclude that coversions should be perfonned in an
exptious manner in order to minimize the risk of incorrec
payments. We expect carrers to establish any necessry
timefrmes to perfrm conversions in their intercnection
agrements or other contracts.12
Qwest argues, creatively, that the TRO addressed only the reverse of the
sitati here-nversions frm wholesale non-251 servces to secton ~51
UNEs-nd that the absence of codif regulations goveming conversions to
non.251 servces underscores the fact that state commissions lack authorly over
this process.'3 On the contrary, the FCC could not have ben more clear in its
directon that conversion procsses incude both the procees to convert
wholesale services to UNEs "and the rever, i.e., convertng UNEs or UNE
combinations to wholesale serces'-'. The FCC clearly envisione that the
availability of an element as a UNE might change, deding on othr
III TRO t 586 (emhasis added) (footnotes omit).
It TRO t 587 (foots omild).
12 TRO 1588 (emhasis adeed).
t: Qwt Reply Memorum at 4.5.
'''TROIS8S.
5
Exhibit No. 205
Case No. QWE-T-08-07
D. Denney, Joint CLECs
circumstances, and that IlECs an ClECs should be prepared to shift their
biDing for these elements betwen pnces set in interconnecton agreements and
those contained in long-ter commercial contracts.15 The FCC did not adopt
rules for the conversion pross because it determined the partes should
negotiate these terms in good faith in thir intercnnection agreements.
Moreover, in the TRRO the FCC reaffrm the vaUdity of its existing ru
governing conversions and commingling in the situatin where one element used
as part of an EEL (dedicated trnsport) Is no longer subject to unbndling
pursuant to secton 251(c)(3).18 It also decined to prohibit convrsions entirely,
as requeste by Bel Operating Companies (incuding awest), in part becuse of
the difculty ClECs have in purcasing circits as UNEs:
For example, competitive lECs demonstrte that they often must
purchase specal accs circits because they encontered
diffcuties in purchasing the circuits as UNEs. In those cases, the
competitive lECs accpt special accss pricing in order to provie
prompt servce to their customers. then convert those circuits to
UNEs as soon as possible. Competiti lECs also expain that
they may purchase special access servces as part of a broader
contract, whch enables them to avoid having to coordinate
connectivity through the accss selVce request and local servce
request procees. But that option is avaHabie only because the
availability of UNEs givs the competitive lECs leverage to
negotiate lowr prices for taffd servs.1?
The Administrative law Judge has concluded, based on the provisions of
the TRO and the TRRO, that the FCC has expressly directed the negotiation of
rates, terms. and coditions relating to converion processes in interconnecton
agreements. and consequenUy the Commission has legal authority under § 252
to address these issues in this docket.
Commingling
At one point in time, the FCC had restrictd the obligation of an IlEe to
"commingle- UNEs and combinations of UNEs wi tariffed servs; in the TRO.
the FCC eliminated this restrcton. The TRO provides. in relevant part:
We therefore moif our rules to affrmatively permit requesting
carrrs to commingle UNEs and combinations of UNEs wi
servces (e.g.. switched and special accss servces offered
pursuant to tariff. and to require incumbent LEOs to perfonn the
necessary functios to effecuate such commingling upon request.
,s TRO I 587.
" TRRO 1142 n. 398 (cig TRO ft 585-9 (coersions) and ft 579-84 (commingling)).17 TRRO 11 231.
6
Exhibit No. 205
Case No. QWE-T-08-07
D. Denney, Joint CLECs
By commingling, we mean the connecting, attching, or otherwse
linking of a UNE, or a UNE combination, to one or more facilities or
seivlce that a requesting carner has obtained at wholesale from
an incumbent LEe pusuant to any method other than unbundling
under secton 251 (c)(3) of the Act. or the combining of a UNE or
UNE combination with one or mor such wholesale servces.1.
We conclude that the Act does not prohibit the commingling of
UNEs and wholesale seivices and that secton 251 (c)(3) of the Act
grants autonty. for the Commission to adopt rules to permit the
commingling of UNEs and combinations of UNEs with wholesale
servces, Including interstate accss servces. An incumbnt LEC's
wholesale servs constite one technically feasible method to
provide nondiscrminatory access to UNEs and UNE combinations.
. . . For these reasons, we require incumbent LECs to effectuate
commingfing by modifying their interstate accss servce ta to
expressly perm connectons with UNEs and UNE combinations.1.
FinaUy, the FCC addresse arguments advanced by incumbent LECs that
commingling should be prohibited because of the biling and operational issues
involvd in comingling a UNE with an interstate accs servce. It concluded
that these issues cold be addressed "through the same process that applies for
other changes in our unbundUng requirements adopted herein, i.e., through
change of law provisios in intercnnection agrements.82O As noted above, the
FCC reaffrm the validity of these comminging rules in the TRRO.21
Qwsts argument tht the Commission lacks authonty is based more on
semantics than on any substanti analysis of a state comision's legal
authonty to address the terms and conditions under which an ILEe is obligated to
provie commingled facilitie. It does not appear to th AU that Integra has
advocated contact language that would impermissiby reuire Qwst to J'rovide
transport or any other non-251 fality as a UNE or at a TELRIC rate. What
1. TRO 11 579 (emphasis added.
1. TR01l 581 (foots omitd).
2l TRO , 583.
ii TRRO 11142 n. 398.zi See Intera Memorum at 6 (O copone of a coled EEL Is pr at TaRIC; the
non-NE may be pr at a ta or other non-NE rate). se alo In th Malter of thePetit of DlECA Communicatios, Inc., d/ Covad Comunati Co, fo Attlon
to Res Issues Relaing to an Intenec Agrement with Owst Coitio, Ara
Rep at PP 46, 48 (Dec. 15, 200), ado by M1meiol Puli UtI1 Commisi, Doket
No. P-5692, 421nc049 (Mar. 14,2005) (decling to chara non251 element and
servce as UNEs or to reuire thr pron at TaRie ras): aws' Co. v. Mzona
Cotlo COmmisn, 496 F.Supp.2d 1069 (D. Ar 200) (st commi canot requnbundlg of non-251 element or reui thr prosi at TELRIC rates as a matte of state
law: Bellouh Telecomunicio, Inc., v. Kentucky Publi SeMc Commissi, 2007 WL
273854 (E.D. Ky.) (sta comissio caot Bfte rate fo swtcing, a non251 elemen.
7
Exhibit No. 205
Case No. QWE-T-08-07
D. Denney, Joint CLECs
Integra has disped are the duplicatie operational processes involved in
ordering, provisioning, billin, and repairing UNEs separately from interstate
accss services, maintaining these procsses consttue an operational barrer to
obtaining accss to a UNE. The FCC has dearly stated that these are the types
of issues to be addressed in intercnnection agreements, and the Administrtie
Law Judge accrdingly condudes th Commission has the legal authori under
§ 252 to resolve issues in this docket relating to the terms and conditions under
which Qwest provides commingled elements and servces.
Based on the agreement of th partes, the Administrtive Law Judge
hereby certes this Recomended Order to the Commission for it
consideration and final order pursuant to MiM. R. 1400.7600 A & B before any
furter proceedings take place in this dockei23
K.D.S.
13 FOU Prehearing Orer (June 27, 2008).
8
Exhibit No. 205
Case No. QWE-T-08-07
D. Denney, Joint CLECs
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Exhibit No. 205
Case No. QWE-T-08-07
D. Denney, Joint CLECs
P4211C1-G7-370, UstlD# 1 Qwes Corration: In the Mattr of Qwest Corporaon's Conversion of UNEs to Non-NEs;
roMNPUC
BurlW. Haar
MN Public Utilites Commission
Suite35
121 7th Plac East
St. Paul MN 55101.2147
f2õ:
I Dept. of Commerce
i
linda Chavez
MN Depaent Of Commerc
Suite 500
85 7th Plac East
St. Paul MN 55101.2198
! 30:
Inter-Qffce Mail
Julia Andersn
MN Offe Of The Attrny General
1400 BRM Tow
445 Minnesota Street
SI. Paul MN 55101.2131
linda S. Jensen
OffIC Of The Attrny General
1400 BRM Tow
445 Minnesota Stret
Sl. Paul MN 55101.2131
John Lindell
OAG-RUD
900 BRM Towr
445 Minneso Stret
Sf. Paul MN 55101.2130
Stev M. Mihalchick
Off of Administrative Heangs
PO Box 64620
St. Paul MN 55164.0620
Katlee D. Sheehy
Off Of Administrative Hearings
PO Box 6420
Sf. Paul MN 55164-020
Exhibit No. 205
Case No. QWE-T-08-07
D. Denney, Joint CLECs
~---Rear Postal Mail
Dennis Ahlers
Ineg Telecm
6160 Golden Hills Dñve
Golden Valley MN 55402.2489
Karen L. Clauso
Integra Telem
6160 Golden HOls Drive
Golden Valley MN 5502.2489
Dan Lipschult
Mos & BameU
480 Wels Farg Cente
90 Sou Sevent Sir
Minneas MN 55402
Gror Merz
Gray, Plan. Mooty
50 LOS Center
80 South Eighth Strt
Minneaplis MN 5502
Adam M. Nathe
Gray Plant Moty
50 IDS Center
80 South Eighth Stret
Minneapolis MN 5502
JasonTopp
Qwst Corortin
Room 2200
20 So Fift Stret
Minneapolis MN 55402
printd 31191009 .. 2:59:46 PM
P421/CI-G7 -371, UstlDt1 Qwest Corpration: In the Mattr of Qwest Corpration's Arrngement for Commingle Element.
110.
MNPUC
BuriW. Haar
MN Public UUlIUes Commission
Suite35
121 7th Place East
SI. Paul MN 55101.2147
12~
~Pt. of Commerce
Linda Chaez
MN Department Of Commerce
SulteSOO
85 7th Place East
SI. Paul MN 55101.2198
130'Int~r-Offce Mall
l
Julia Andersn
MN Offce Of The Attmey Genera
1400 BRM Towr
445 Minnesta Stre
Si. Paul MN 55101-2131
Linda S. Jensen
Offce Of The ADomey General
1400 BRM Towr
445 Minnesota Street
SI. Paul MN 55101-2131
JohnUndell
OAG.RUD
900 BRM Towr
445 Minnesta Stret
SI. Paui MN 55101-2130
Steve M. Mihalcick
Offce of Administrative Heañngs
PO Box 6420
SI. Paul MN 5516420
Kathleen D. Sheehy
Offce Of Adminitrae Hearings
PO Box 8420
SI. Paul MN 55164-020
Exhibit No. 205
Case No. QWE-T-08-07
D. Denney, Joint CLECs
14f
R~guiar Postal Mail
Dennis Ahers
Integra Telec
6160 Golden Hi.s Dri
Golden Valley MN 5502.2489
Karen L. Clauson
Integra Telecom
6160 Goln Hills Drie
Golden Valley MN 55402-248
Dan Lipschultz
Moss & Bamen
4800 Wells Faro Center
90 South Seventh Stret
Minneapos MN 5502
Gregory Merz
Gray, Plant. Moty
500 LOS Center
80 South Eig Street
Minneapolis MN 5502
Jason Topp
Qwsl Cororation
Room 22
200 South Fifth Stret
Minneapolis MN 5502
printed 31191009.3:01:07 PM