20040708Qwest Objections to Petitioners Reply.pdf

WILLIAM J. BATT, ISB No. 2938
BA TT & FISHER, LLP
S. Bank Plaza, Suite 500
101 S. Capitol Boulevard
Post Office Box 1308
Boise, ID 83701
Telephone: [phone]
Facsimile: [phone]
Adam Sherr
Qwest Communications, Inc.
1600 7th Avenue - Room 3206
Seattle, W A 98191
[phone]
Attorneys for Respondent! Respondent on Appeal
f~~ECE!\IED
F I t.E: 1:)t~,.
2004 JUL - 8 At; 10=
; L); ; ri tu U L;
UTILITIES. COr1t'~1ISSI0ti
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE JOINT PETITION
OF ROBERT RYDER, DBA RADIOP AGING
SERVICE, JOSEPH MC NEAL, DBA
AGEDA TE AND INTERP AGE OF IDAHO
FOR A DECLARATORY ORDER AND
RECOVERY OF OVERCHARGES FROM U.
WEST COMMUNICATIONS, INC.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
ROBERT RYDER dba RADIO PAGING
SERVICE, JOSEPH B. MC NEAL DBA
AGEDA TE AND INTERP AGE OF IDAHO
AND TEL-CAR, INC.
Petitioners- Appellants
IDAHO PUBLIC UTILITIES COMMISSION
Respondent on Appeal
and
QWEST CORPORATION
Respondent-Respondent on Appeal.
SUPREME COURT
DOCKET NO. 29175
IPUC DOCKET NO. T -99-
QWEST CORPORATION'
OBJECTIONS TO PETITIONERS'
REPL Y AND MOTION TO STRIKE
ORIGINAL
QWEST CORPORATION'S OBJECTIONS TO PETITIONERS' REPLY AND MOTION TO STRIKE , P. 1
INTRO D U CTI 0 N
In Order No. 29491 \ the Commission ordered the parties to address seven specific
questions engendered by the vacation of the FCC's decision in Mountain Communications
Qwest by the Court of Appeals for the District of Columbia Circuit. Two of the questions
concerned the issue of wide area calling, and five questions related to the transit traffic issue. The
Commission ordered Qwest Corporation (hereinafter "Qwest") to answer the questions and
perform certain calculations. The Order further provided that "( 0 Jnce Qwest has filed its
response, then the Pagers will have an opportunity to respond to the questions and reply
Qwest's information! calculations." Order No. 29491 at 8.
Instead, the Petitioners ("Pagers ) took this opening to attempt reopening the principal
issues in the case - issues not related to the Mountain Communications decision. The Pager
Reply2 went far beyond the Commission
s questions and issues implicated by the Mountain case.
The Reply raises many improper issues and attempts to bring in evidence not in the record. In
addition, the Pagers attached a voluminous document prepared by Joseph McNeal on behalf
all three pagers.3 That document would add additional improper issues and evidence. The
McNeal Appendix is particularly objectionable because it contains blatantly false information
and claims.
Below are the following:
1. Qwest's Objections to Petitioner s Reply to Order No. 29491 and
2. Motion to Strike McNeal Appendix and Reply s improper issues and evidence
Commission Order No. 29491 , service dated May 12 2004.
2 Petitioner s Reply Pursuant to Order No. 29491 (hereinafter "Reply
3 Appendix A to Pagers' Reply (hereinafter "McNeal Appendix
QWEST CORPORATION'S OBJECTIONS TO PETITIONERS' REPLY AND MOTION TO STRIKE , P. 2
QWEST'S OBJECTIONS TO PETITIONER'S REPLY TO ORDER NO. 29491
The Commission should reject the Pagers' attempt to reopen issues not implicated or
affected by the Mountain decision. Likewise, the Commission should not allow the Pagers ' to
introduce new evidence not in the record, or to make arguments based on facts that are not before
the Commission in this case.
A. This Case is Still on Appeal to the Idaho Supreme Court, and the Present
Proceeding is Limited to Narrow Issues
The parties, including the Pagers, obtained a stay of the pending appeal from the Idaho
Supreme Court because of the reversal of Mountain Communications. On February 13 2004, the
parties, including the Pagers, filed a stipulated motion with the Supreme Court, in which the
parties requested a stay for the following reasons:
To allow the FCC time to reconsider issues raised by DC Circuit Court
To allow the Idaho Commission to reconsider its Orders with respect to wide area
calling and transit traffic issues in light of the DC Circuit Court Decision, and
To all the parties to discuss settlement
On May 11 , all the parties moved the Supreme Court to continue the suspended appeal.
The parties reported to the Court that settlement discussions had been unfruitful, and the FCC
had not taken action. Therefore, the parties requested further time for the IPUC to obtain briefing
from the parties regarding the two issues. The stay of the appeal expires on July 15 2004-
certainly too soon to allow the Pagers relitigate this case in the meantime.
Robert Ryder et aI., Appellants v. Qwest Corporation and Id. Pub. Util. Comm., Respondents Docket
No. 29175, Order Granting Motion to Suspend the Appeal, dated June 7, 2004.
QWEST CORPORATION'S OBJECTIONS TO PETITIONERS' REPLY AND MOTION TO STRIKE , P. 3
B. The Present Proceeding Was Not an Invitation to Reopen Other Issues in the
Case, Nor to Provide New Evidence
In their Reply and the McNeal Appendix, the Pagers seek to reopen issues decided long
ago, or that the Commission long ago rejected as being outside the scope of the case. They
attempt to introduce wholly new issues. They present new "facts , information, and propositions
without substantiation, or based on evidence that is not part of the record.
The Commission should reject the Pagers' attempts to manipulate this narrow proceeding
to their advantage. The Pagers ' appeal to the Idaho Supreme Court was filed after three and a
half years of litigation, during which the Commission had issued a half dozen major Orders
while the Pagers filed many petitions for rehearing, reconsideration, amendment, and
modification. To reopen those issues, except to the extent necessary for the Commission to
reconsider the transit and wide area calling issues implicated by Mountain reversal, is neither
warranted or appropriate.
Qwest respectfully urges the Commission to repress the Pager s efforts and keep the
focus of this proceeding on the narrow issues described in Order No. 29491. Qwest is already
defending six separate actions brought by Joseph McNeal and his affiliates; they exhibit no
concern that they tax the Commission s scarce and valuable resources.
The Commission should reject the Pagers' attempts to open additional issues and to bring
in new evidence.
5 If the Commission admits or otherwise considers the new evidence submitted by Petitioners
particularly the false evidence proposed in the McNeal Appendix, Qwest will have no alternative but to
request an opportunity to address the evidence.
QWEST CORPORATION'S OBJECTIONS TO PETITIONERS' REPLY AND MOTION TO STRIKE , P. 4
C. Qwest Objects to Issues Raised by Pagers that are Outside the Scope of the
Present Proceeding
The following issues in the Reply and McNeal Appendix do not related to the
Commission s questions in Order No. 29491 , the wide area calling issue, or the transit traffic
Issue:
Issues Concerning All Three Pagers
The Commission should reject all Qwest's previous and current calculations
The Pagers should have option of getting a cash refund7
The Pagers have right at any time to invoke 252(i) dispute resolution in a formal hearing
such as this proceeding to resolve their disputes, and Commission cannot deny that right
The Pagers have a right to reciprocal compensation
Issues Relating to Radio Paging
None
Issues Relating to Page Data
All amounts paid by PageData must be refunded by Qwest. 10 PageData was billed and
paid total of$245 628., all of which must be reimbursed11
PageData was billed and should be reimbursed an additional $14 926.80 for frame relay
and T-, even though PageData does not claim to have paid these bills. 12 Qwest's
6 McNeal Appendix, pp. 10-, 19
7 Reply, pp. 16-17; McNeal Appendix p. 16.
8 McNeal Appendix, pp. 15 -18. The Pagers state that they.invoke (or perhaps will invoke) "252(i) dispute
resolution" if Commission does not order refunds in cash of all unlawful payments made to Qwest, and
they will adopt the Arch and PageNet Confidential Billing Settlement Agreements. Id.
9 McNeal Appendix, p. 14.
10 Reply, p. 3; McNeal Appendix, p. 19
11 Reply, ppA, 6, 9, Exhibits Band C
12 Reply, p. 9, Exhibit C
QWEST CORPORATION'S OBJECTIONS TO PETITIONERS' REPLY AND MOTION TO STRIKE , P. 5
federall
r tariffed
frame relay service must be provided to PageData by Qwest without
charge
The Commission must confirm PageData s right to SPOP and give Qwest a date certain
by which facilities should be installed. 14 Qwest should have provided SPOP to PageData
long ago
POTS lines should be free to PageData
All facilities of PageData are part of its network and must be provided by Qwest for free
because PageData originates no traffic. 17 PageData s network should be provided by
Qwest free of charge even on its side of the POC.
10.Qwest was/ is obligated to provide dedicated transport ("leased" lines) to PageData
without charge, irrespective of their purpose or location
11.PageData does not have to pay tariffed charges for 800 numbers that PageData
purchased2o
12.PageData should not have to pay for any facilities or services because Qwest should have
provided a single point of presence
13.PageData actually had a credit balance, if rerates had been applied, when it asked for a
single point of presence in 1998
Issues Relating to TelCar. Inc.
14.TelCar should be reimbursed for $17 574.72 in mobile charges billed by Qwest
13 Reply, pp. 5 6 Exhibit A, B , C
14 McNeal Appendix, p. 15. Qwest is uncertain what PageData is after here. In another proceeding before
the Commission, PageData had filed a "Motion for Expeditious Substantive Relief' seeking the
Commission s intervention in provisioning of certain trunking to PageData. Qwest believed this issue was
settled after it provisioned facilities to PageData as part of recent interconnection negotiations. In fact
earlier the McNeal Appendix states
, "
In the last week and after waiting six years, Qwest finally installed a
Type 2 standard single point of presence for PageData.
15 Reply, pp. 4-, 6, Exhibit A
16 Reply, pp. 5, 6, 7-, Exhibits A, B, C, E
17 McNeal Appendix, p. 14
18 Reply, pp. 5, 6, Exhibits A, B, C
19 Reply, pp. 6, Exhibit A, B, C
20 McNeal Appendix, p. 8
21 McNeal Appendix, p. 10
22 McNeal Appendix, pp. 9-
QWEST CORPORATION'S OBJECTIONS TO PETITIONERS' REPLY AND MOTION TO STRIKE , P. 6
D. Qwest Objects to New Evidence Not In the Record
Qwest objects to the following items, which are either new evidence not in the record, or
discussions/ arguments based on facts that are not in the record. Such evidence and arguments
are improper and should be rejected by the Commission.
Exhibit A to the Reply and the McNeal Ap~endix, showing PageData s new
claim as to how its network was configured
Exhibit E, April 30, 2004 letter from Qwest to Joseph McNeal regarding planned
changes in offering for resale of private line services
Mobile services were part of TelCar s paging network26
Discussion of Qwest' s settlement discussions with bankruptcy trustee and needs
of bankruptcy trustee
Unfiled" Arch and PageNet settlement agreements
October 12 2000 letter from Deputy Attorney General to counsel for parties
and discussion of same
Qwest account statements, bill dates September and October 1998, and overdue
balance statements
23 Reply, pp. 10-, Exhibits F, G
24 The diagram does not even remotely factually represent the McNeal network during the time period in
question in this case. Qwest believes the diagrams may show W aveSent' s present network or some
idealized network of PageData.
25 Reply, Exhibit E.
26 Reply, pp. 10-11. No evidence supports this claim.
27 Reply, p. 16. The description of the discussions is false. Qwest can provide the trustee s settlement
offer letter, in which he demanded that Qwest pay a significant sum above the Commission-ordered credit
to settle.
28 McNeal Appendix, Exhibits 1 and 2.
29 McNeal Appendix, Exhibit 7.
30 McNeal Appendix, p. 9
31 McNeal Appendix, Exhibit 8.
QWEST CORPORATION'S OBJECTIONS TO PETITIONERS' REPLY AND MOTION TO STRIKE , P. 7
First page of what purports to be a letter from someone at Qwest to Joseph
McNeal dated November 25 , 1998
Table 1 in McNeal Appendix, comparing claimed facts regarding TSR Wireless
Mountain Communications, and PageData. Virtually none of that information is
in the record and much of it is inaccurate or false.
Table 2 in McNeal Appendix, showing purported calculations that PageData
should have had a credit balance sometime in the fall of 1998
Discussion of (i) Qwest's changes in policies regarding Type 2 SPOP since the
hearing in this case, (ii) PageData s recent negotiations with Qwest, and (iii)
Qwest's recent provisioning of Type 2 SPOP to PageData.
Discussion of Qwest' s initiation of plans to cease charging paging carriers for
transit traffic unless third party billing information is warranted by Qwest
Qwest has settled more complicated paging disputes than what is presently
before the Commission.,,37
It was Qwest's policy not to provide a single point of presence in the LATA in
Idaho for companies that Qwest considered paging only.,,38
Unidentified Exhibits 10- 13 of McNeal Appendix
Every other paging carrier that Qwest settled with received a cash refund.,,40
32 McNeal Appendix, Exhibit 9. Qwest cannot even identify this document or where it came from.
33 McNeal Appendix, p. 10 (Data and documents from which Table is claimed to be derived are not in
evidence)
34 McNeal Appendix, p. 10 (It is not clear what evidence this Table is based on, but in an event the data
and documents from which Table is claimed to be derived are not in evidence)
35 McNeal Appendix
, p.
36 McNeal Appendix, p. 14
37 McNeal Appendix, p. 20.
38 McNeal Appendix, p. 20.
39 These appear to show current network configurations, which are unrelated to PageData s network
configuration at the time period in question
40 McNeal Appendix, p. 20. The Pagers attempt to mislead the Commission with this fallacious
statement. To the personal knowledge of Qwest's undersigned counsel, Qwest's settlements with paging
carriers have involved credits or refunds, depending on whether the application of the TSR Wireless rerate
resulted in a positive or negative account balance.
QWEST CORPORATION'S OBJECTIONS TO PETITIONERS' REPLY AND MOTION TO STRIKE , P. 8
It was the routine at Qwest to give competitive carriers false information
concerning network configuration and interconnection options based on Qwest'
policy not to provide a single point of interconnection in the LATA.
E. This Commission Should Strike the Pager s Reply to the Extent the Pagers
Proffer Improper Issues and Evidence
Qwest stated above its objections to improper issues and evidence submitted by the
Pagers in their Reply. Qwest also moves the Commission to strike the Pagers' Reply on those
issues and that evidence objected to by Qwest.
Many of those improper issues and evidence are outside the scope of the record in this
case. More importantly, however, the Pagers attempt to go far beyond the narrow scope of the
present proceeding. That scope was first defined by the parties in their joint motions to the
Supreme Court, and further delineated by the Commission s specific questions in Order No.
29491.
Qwest also moves the Commission to strike the McNeal Appendix in its entirety as stated
below.
F. This Commission Should Strike the McNeal Appendix in its Entirety
The Commission should strike the McNeal Appendix in its entirety, because:
1. The McNeal Appendix is non-responsive to the Commission s questions in
Order No. 29491 and the scope of the present proceeding;
2. The McNeal Appendix is essentially a rant about issues that are not before the
Commission at this time;
3. The McNeal Appendix is in reality a second legal brief filed by the Pagers
but does not appear to be sponsored by the Pagers' attorney Jim Jones; and
4. Mr. McNeal is not an attorney and cannot appear for other parties before the
Commission.
41 McNeal Appendix, p. 21. This malicious statement by the Pagers is unfounded, false, and defamatory.
QWEST CORPORATION'S OBJECTIONS TO PETITIONERS' REPLY AND MOTION TO STRIKE , P. 9
The McNeal Appendix is attached to the Reply as Exhibit A. The Reply itself does not
refer to the McNeal Appendix, except to describe it as an "overview" prepared by "Joseph B.
McNeal, d/b/a PageData
" -
one of the Petitioners in this case. Of course, Jim Jones, attorney for
the Pagers throughout this case, signed the Reply. However, he did not sign the Appendix.
Rather, the McNeal Appendix seems to be an entire additional brief filed on behalf of the
Pagers. Unquestionably it is filed on behalf of all three Pagers, but it is signed by Joseph McNeal
instead of Jim Jones. However, Mr. McNeal is not an attorney and cannot appear for other
parties under the Commission s Rules.
This is not much ado about appearances or niceties. If an attorney had signed the
McNeal Appendix, he or she would have at least made a facial attempt to draft a pleading that
appears appropriate given the present state and procedural posture of the case. The McNeal
Appendix, however, is a tirade about not only the issues in this case, but also the now-familiar
rants about secret agreements and conspiracies against paging companies.
The McNeal Appendix is an inappropriate document in more ways than one. Of course
Mr. McNeal cannot represent the other two Pagers before the Commission. Rule 43 of the
Commission s Rules of Practice and Procedure provides:
01. Natural Person. A natural person must represent himself or herself or be
represented by a duly authorized employee, or an attorney. (3-16-04)
02. Partnership. A partnership must be represented by a partner, duly authorized
employee, or an attorney. (7-93)
03. Corporation. corporation must be represented by an officer, duly
authorized employee, or an attorney. (7-93)
42 See Rule 43 , Rules of Practice and Procedure.
QWEST CORPORATION'S OBJECTIONS TO PETITIONERS' REPLY AND MOTION TO STRIKE , P. 10
Clearly the McNeal Appendix does not comply with Rule 43. Moreover, it is replete
with improper discussions beyond the scope of this proceeding.F or these reasons, the
Commission should strike the McNeal Appendix in its entirety.
CONCLUSION
For the foregoing reasons, the Commission should reject the improper issues and
evidence proffered by the Pagers, grant Qwest's objections thereto , and strike such improper
issues and evidence. In addition, the Commission should strike the McNeal Appendix in its
entirety.
DATED this 8th day of July, 2004.
Respectfully Submitted
Adam Sherr
Qwest Communications, Inc.
1600 7th Avenue - Room 3206
Seattle, W A 98191
and
William J. Batt
Batt & Fisher, LLP
U S Bank Plaza, 5th Floor
101 South Capital Blvd.
Boise, Idaho 83702
[phone]
QWEST CORPORATION'S OBJECTIONS TO PETITIONERS' REPLY AND MOTION TO STRIKE , P.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 8h day of July, 2004, I caused a true and correct copy
of the above and foregoing document to be served, in the manner indicated, on the following:
Jim Jones
JIM JONES & ASSOCIATES
1275 Shoreline Lane
Boise, Idaho 83702-6870
Telephone: [phone]
Fax: [phone]
Hand Delivery
g),U.S. Mail
0Facsimile
Federal Express
Don Howell
Idaho Public Utilities Commission
472 West Washington
Boise, ID 83702
Telephone: [phone]
Fax: [phone]
0-Rand Delivery
0 U.S. Mail
Facsimile
Federal Express
By:
William J. Batt
QWEST CORPORATION'S OBJECTIONS TO PETITIONERS' REPLY AND MOTION TO STRIKE , P. 12