20040823Qwest Motion to Stay Order No 29555.pdf

WILLIAM J. BATT, ISB No. 2938
James B. Alderman, ISB No. 6422
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
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U lIL tIES . CDI"1f"HSSION
BEFORE THE ID AH 0 PUBLIC UTILITIES CO MMISSI 0 N
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'
MOTION TO STAY ORDER NO. 29555
QWEST CORPORATION'S MOTION TO STAY ORDER NO. 29555 , P. 1 ORIGINAL
Qwest Corporation ("Qwest") moves the Commission to stay Order No. 29555 (the
Remand Order ) pending a decision on Qwest's Motion for Reconsideration. Qwest further
moves the Commission to enter or continue a stay of the Remand Order during the pendency of
Qwest's appeal of the Remand Order to the Idaho Supreme Court, should such an appeal be
filed.
Status of Remand Order and Procedural Issues
The Remand Order by its terms already purports to be a final order on reconsideration
and states that an appeal may be taken. If this case were in an ordinary procedural posture, a
motion to reconsider a final appealable decision might not be inappropriate. After reviewing the
law and procedural rules, however, Qwest believes that not only would it be appropriate for the
Commission to further consider the Remand Order, it is not legally certain that an appeal can be
taken from the Remand Order without first filing a ~otion for reconsideration. 1 Qwest will file
its Motion for Reconsideration of the Remand Order with the Commission on August 23 2004.
Qwest will urge the Commission to hear its Motion for Reconsideration, however, based on the
unusual circumstances presented.
The Commission Decided Issues of First Impression in the Remand Order
This protracted litigation has already been on appeal to the Idaho Supreme Court for a
substantial period of time, but the parties and Commission stipulated to ask the Supreme Court to
remand the case to the Commission for consideration of whether any of the Commission
previous decisions on the issues of wide area calling or transit traffic should be changed in light
1 The requirement that a party file a motion for reconsideration regarding issues to be raised on appeal is
jurisdictional. Eagle Water Co. v. Idaho Pub. Uti/so Comm , 130 Idaho 314 940P.2d 1133 (1997).
QWEST CORPORATION'S MOTION TO STAY ORDER NO. 29555, P. 2
of the reversal of the Federal Communications Commission s decision in Mountain
Communication v. Qwes by the District of Columbia Circuit Court of Appeals.
In Mountain the DC Circuit Court reversed the FCC on the first of the issues: wide area
calling. The Court in effect held that the FCC had abused its discretion by failing to provide a
reasoned rationale for its decision that Mountain had to pay Qwest for facilities used to transport
traffic to a point of connection outside the landline local calling area, and by failing to reconcile
its decision with other paging rulings and its own interconnection rules.4 Essentially, the Court
vacated the FCC's decision and remanded the case to the FCC, implicitly for the purpose of
conducting further proceedings to reconsider its decision in light of these inconsistencies. What
will happen on that remand is unknown. Nothing productive has yet taken place at the FCC.
On the transit traffic issue, the Court established no law whatsoever. In a bizarre turn of
circumstances, Mountain withdrew the issue from the appeal based on a discussion among the
judges and counsel at oral argument. Accordingly, the Court did not rule on that issue, and on
remand to the FCC, the issue is no longer part of the case.
The FCC's and federal courts' lethargic articulation of the policy and law of paging
interconnection under the 1996 Act is one of the worst failures under the Act. The result for the
industry and this Commission has been uncertainty and litigation. Indeed, this Commission and
the FCC itself are the only two bodies in the country to have made any attempt to
comprehensively articulate this law. In its Remand Order, the Commission substantially
Mountain Communications, Inc. v. Qwest 17 FCC Rcd 2091 (February 2 2002); Order on Review, 17
FCC Rcd 15135 (July 25 2002).
Mountain Communications v. FCC 355 F.3d 644 (D.C. Cir. 2004).
Mountain Communications v. FCC 355 F.3d at 649.
QWEST CORPORATION'S MOTION TO STAY ORDER NO. 29555, P. 3
changed its previous holdings on the wide area calling and transit traffic issues. In so doing, the
Commission had to guess what the law may be.
Grounds for Stay
In its Motion for Reconsideration, Qwest will argue that the Commission s decisions on
these issues wrongly predict how the FCC and federal courts will ultimately articulate the law.
Because the Remand Order presents the first articulation of paging interconnection law following
the Mountain Communications reversal, the decision may have broad implications. This is
particularly true with respect to the transit traffic issue, where the Commission seems to have
ruled that Qwest must refund past transit traffic charges to paging companies, even though the
FCC has said Qwest may assess such charges, and even where the Pagers did not request data
from which they could bill the originating carrier.
Qwest interconnects with approximately 200 paging companies in its 14-state territory.
Qwest will show on reconsideration that the revenue associated with transit traffic for paging
companies is approximately $300 000 per month. Qwest's exposure on past transit charges has
not been calculated, but it surely is many millions of dollars.
Idaho Code ~ 61-626 and Rule 324, provide for stay of an Order to be entered by the
Commission.5 A stay can be important and necessary pending reconsideration or appeal, to
protect parties ' due process rights.
As Qwest will explain in its Motion for Reconsideration, Qwest's due process rights are
at stake. Qwest will show that the requirement that ILECs provide paging companies with free
5 See IDAP A 31.01.01.324.
Utah Power Light Co. v. Idaho Public Utilities Commission 107 Idaho 47 685 2d 276 279 (1984)
(stay to prevent confiscation and irreparable loss); Joy v. Winstead 70 Idaho 232 238, 215 2d 291 293
(1950).
QWEST CORPORATION'S MOTION TO STAY ORDER NO. 29555, P. 4
dedicated interconnection facilities, has been challenged as a taking in the past, but the FCC and
courts have avoided the issue in various ways. However, if the Idaho Commission has
accurately articulated the law of paging interconnection in its Remand Order, then the
government's taking of Qwest's property without compensation is complete. Qwest will receive
compensation for the dedicated facility it must provide to paging carriers.
Finally, as will be detailed in Qwest's Motion , the Commission has ordered Qwest to
refund or credit certain amounts to the paging carriers in this case, and the extent of that
obligation is unclear. Qwest will not be able to agree with the Pagers as to whether they are
entitled to credits or refunds, thus making appropriate a stay of the Remand Order until the
parameters of that obligation can be clarified.
DATED this 20th day of August, 2004.
Respectfully Submitted
Adam Sherr
Qwest Communications, Inc.
1600 7th Avenue - Room 3206
Seattle, W A 98191
and
William J. Batt
James B. Alderman
Batt & Fisher, LLP
U S Bank Plaza, 5th Floor
101 South Capital Blvd.
Boise, Idaho 83702
[phone]
QWEST CORPORATION'S MOTION TO STAY ORDER NO. 29555, P. 5
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 20h day of August, 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
~ U.S. Mail
Facsimile
Federal Express
Don Howell
Idaho Public Utilities Commission
472 West Washington
Boise, ID 83702
Telephone: [phone]
Fax: [phone]
IElHand Delivery
S. Mail
Facsimile
Federal Express
-g,L
William J. Batt
QWEST CORPORATION'S MOTION TO STAY ORDER NO. 29555, P. 6