20040824Qwest Petition for Reconsideration of 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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UTiL il IE S CO I'; JSSIGN
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE JOINT PETITION
OF ROBERT RYDER, DBA RADIOPAGING
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'
PETITION FOR RECONSIDERATION
ALTERATION OR AMENDMENT OF
ORDER NO. 29555
ORIGINAL
QWEST CORPORATION'S PETITION FOR RECONSIDERATION, AL TERA TION OR AMENDMENT OF
ORDER NO. 29555, P. 1
Introduction
Qwest Corporation ("Qwest") hereby requests, pursuant to Idaho Code ~ 61-626 and RP
331 , that the Commission reconsider Order No. 29555 (the "Remand Order ) issued in this case
on August 2, 2004. As explained below, Qwest requests in the alternative, pursuant to Idaho
Code ~ 61-624 and RP 326, that the Commission alter or amend the Remand Order.
In this long litigation, the Commission has before been in the unenviable position of
attempting to predict what legal principles the FCC and federal courts will articulate concerning
interconnection between incumbent local exchange carriers ("ILECs ) and paging carriers. The
Commission has spent considerable resources on this case and others brought by the three
petitioners in this case (the "Pagers ), and has issued several excellent, well-reasoned decisions.
Regrettably, the development of federal law concerning paging interconnection has been
inconsistent and unpredictable.
Until January 2004, it appeared that - eight years into the Telecommunications Act of 1996
the most controversial paging interconnection issues were finally close to resolution. With the
reversal of the FCC'Mountain Communications decision 1 by the District of Columbia Court of
Appeals 2 the legal turmoil of three to four years ago is revived. Meanwhile, the FCC continues
to sweep unsolvable issues such as the ones present here, into its Intercarrier Compensation
Docket, now pending for three years itself. The remanded Mountain case now sits inactive at the
FCC, with the parties so far unable to reach settlement or negotiate an interconnection
agreement. Thus, for the foreseeable future, as long as this Commission continues to act as the
proxy for the FCC and attempts to divine what the FCC may do, if it does anYthing, the
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).
QWEST CORPORATION'S PETITION FOR RECONSIDERA TION, AL TERA TION OR AMENDMENT OF
ORDER NO. 29555, P. 2
Commission will be on uncertain ground.
In its Remand Order, the Commission played the role the FCC should be playing in the
Mountain case. The Commission stepped forward and made unprecedented rulings regarding
wide area calling and transit traffic issues. Qwest disagrees with the Commission s decisions on
those issues and thus files this Petition; nevertheless, Qwest respects the Commission no less for
its excellent work in this case, and its willingness to try to make sense out of these frustrating
issues and rules, that, in many ways, defy logic.
Qwest first reviews the Commission s original decisions in which it decided to take
jurisdiction over paging interconnection matters. These decisions show that the basis of
jurisdiction is tenuous. Next, we review the Mountain decision, and offer to show on rehearing
that the interconnection at issue is factually and legally distinguishable from the Pagers here.
then discuss the billing credits issues raised in the Remand Order, and finally, we point out
constitutional issues raised by the Order.
Basis of the Commission s Jurisdiction
When the Pagers filed this case in 1999, the Commission was unsure of its jurisdiction
and ordered the parties to brief the issue of jurisdiction. The Commission then issued Order No.
28427, which after finding jurisdiction dismissed both Counts of the Pagers' Petition on the
merits.3 The Commission found jurisdiction under Idaho Code section 62-626, governing
3 Order No. 28427, issued July 5, 2000. Count I alleged that Qwest had improperly charged Pagers for
interconnection facilities, listing specific tariffed USOCs. Count II alleged that Qwest had discriminated
against the Pagers by giving other paging companies more favorable interconnection terms.
QWEST CORPORATION'S PETITION FOR RECONSIDERATION, AL TERA TION OR AMENDMENT OF
ORDER NO. 29555, P. 3
subscriber complaints.4 Because Qwest's charges conformed to the Title 62 price lists, the
Commission found that the Petitioners' claims failed as a matter of law.
The Commission considered, but rejected, the applicability of the "claw-back" provision
Idaho Code section 62-605(5), because it found that Qwest's charges were not adverse to the
public interest. The Commission rejected Pagers ' argument that the charges were adverse to the
public interest because they were "illegal " stating:
The Commission rejects this argument because it finds that every person should
pay the fair costs for receiving service or having facilities dedicated to that
individual's use. The Commission finds that endorsing the Petitioners ' position
providing free dedicated facilities and services to anyone - is not in the public
interest and may be potentially unconstitutional. It is not in the public interest to
allow pager customers free use of the U S WEST network facilities and then
expect other customers to shoulder the expenses of the dedicated pager facilities.
Finally, the Commission rejected Pagers' suggestion that jurisdiction was proper under Idaho
Code Section 62-615(1).6 The Commission stated:
This statute declares the Legislature s intent that the Commission act
accordance with "applicable" federal law. It does not incorporate federal law. It
does not override existing Idaho statutory law and does not make the Commission
the "handmaiden" of the FCC. It only allows the Commission to implement those
portions of the Federal Telecommunications Act of 1996 that specifically delegate
or recognize state Commission authority to act. It does not require the
Commission to enforce FCC rules or actions independent of a specific statutory
delegation to the Commission or recognition of existing Commission authority.
4 "The commission shall have the authority to investigate and resolve complaints made by subscribers to
telecommunication services which are subject to the provisions of this chapter. . . whether price and
conditions of service are in conformance with filed tariffs or price lists, . . . . The commission may, by
order, render its decision granting or denying in whole or in part the subscriber s complaint or providing
such other relief as is reasonable based on the evidence presented to the commission at the hearing. . . .
Idaho Code 9 62-616.
5 Order No. 28427 at p. 8.
6 "The commission shall have full power and authority to implement the federal telecommunications act
of 1996, including, but not limited to, the power to establish unbundled network element charges in
accordance with the act." Idaho Code 9 62-615(1).
7 Order No. 28427 at p. 8-9 (underlining original).
QWEST CORPORATION'S PETITION FOR RECONSIDERATION, ALTERATION OR AMENDMENT OF
ORDER NO. 29555, P. 4
The Commission further observed that it appeared to the Commission that it was the FCC's rules
that were illegal:
The Commission finds that the items contained in the disputed Price List are those
facilities and equipment necessary to allow the Petitioners to interconnect with the
US WEST network. The Commission finds that Congress intended, as is
constitutionally required, that these facilities and equipment be provided on "rates,
terms, and conditions that are lust, reasonable, and nondiscriminatory." Congress did
not say they should be provided free of charge. Certainly, Congress cannot and has not
specifically authorized the Idaho Commission to impose interconnection responsibilities
free of charge. 8
Almost simultaneously with the Commission s Order, the FCC issued its decision in the
TSR Wireless case.9 The Pagers petitioned for reconsideration. Qwest suggested that it would be
beneficial to the parties if the Commission took jurisdiction for the purpose of determining what
credits were due pagers under the FCC'TSR Wireless order, and the Commission agreed
granting reconsideration. 10 The parties were ordered to make further filings and attempt
settlement.11 The discussions were not productive.
The Commission issued its "Liability Order" on December 20, 2000.12 The Commission
found jurisdiction to decide the "overcharges" issue and reinstated Count I of the Petition; the
Commission found the subscriber complaint provisions of ~62-616 applicable because Qwest
had acquiesced in the FCC's ruling that Idaho tariffed charges were preempted.13 The
Commission stated:
Id.
TSR Wireless v. WEST, Memorandum Opinion and Order 15 FCC Rcd 11166 (2000), aff'd sub
nom. Qwest Corporation v. FCC 252 F.3d 462 (D.C. Cir. 2001).
10 Order No. 28473 , issued August 9 2000.
11 Id.
12 Order No. 28601 , issued December 20 2000.
13
Id. at pp. 10-11.
QWEST CORPORATION'S PETITION FOR RECONSIDERATION, AL TERA TION OR AMENDMENT OF
ORDER NO. 29555, P. 5
In the present case the Commission believes, despite its feelings about FCC
decisions, that it is in the public s best interest to accept Qwest's offer and
agreement to comply with FCC paging decisions which it recognizes governs this
matter, pending appeals.
The Commission established the ground rules in this Liability Order, providing the dates and
time periods during which each Pager was entitled to "a billing credit or refund." The
Commission also ruled that "Petitioners are not entitled to recovery of amounts charged for
foreign exchange service or wide area calling services, i.e. W A TS under the Commission
decision." 15
The Pagers filed a Petition for Amendment of the Liability Order, and the Commission
granted the Petition in part in Order No. 28626.16 As relevant here, the Commission refused to
amend the Liability Order s reference to "billing credit " stating:
The Petitioners request that the language "a billing credit or" be struck from the
third, fourth, fifth and sixth ordering paragraphs on pages 12 and 13 of Order No.
28601. See also Petition to Amend, Exh. 1. If this language were removed, the
Petitioners would presumably be entitled "reimbursements" but not billing credits.
* * * * The Commission finds that Petitioners have not provided any justification
for striking the language "a billing credit or" as they have requested. For this
reason, they have failed to comply with Commission Rules 326 and 331. IDAP
31.01.01.326 and .331. Accordingly, this request is denied.
With this ruling, the Liability Phase ended. Order Nos. 28601 (the Liability Order) and
28626 (on the Petition to Amend) were both final, appealable orders. No party appealed, thus
making matters decided in the Liability Phase settled as a matter of law, and establishing the law
of the case on those issues.
14
Id. at p. 11.
15 Id. at n.15.
16 Order No. 28626, issued February 5, 2001.
17
I d. at 2.
QWEST CORPORATION'S PETITION FOR RECONSIDERATION, ALTERATION OR AMENDMENT OF
ORDER NO. 29555 , P. 6
The Mountain Communications Decision as Applied to This Case
The parties agreed to a procedure on remand whereby they would address, and the
Commission would examine, the effect of the D.C. Circuit's decision in Mountain
Communications on two issues: wide area calling, and transit traffic. In both cases, we start with
the language in Order No. 28601 , by which.the Commission articulated that it found jurisdiction
to reinstate Count I and determine the disputes between the Pagers and Qwest:
(T)he Commission finds that there is agreement among the parties that the
Petitioners are entitled to a billing credit or reimbursement for the charges they
have incurred for the facilities used to deliver local LEC-orie:inated traffic
the Petitioners at least sometime after late 1996.
Wide Area Calling
On the issue of wide area calling, the instant case differs significantly from Mountain.
Mountain, the issue of whether the network configuration constituted "wide area calling" was
appealed to the DC Circuit. Here, however, the Commission decided that the Pagers were not
entitled to recover for wide area calling facilities in final, appealable orders. Those orders were
not appealed, thus legally foreclosing any change now.
Moreover, though, whatever the facts were in the Mountain record before the DC Circuit
Court, the record presented in the Credit Phase of this case clearly established some critical facts
that were missing in Mountain. The Circuit Court confusion over the "peculiar" Mountain
Communications network configuration:
Here, for reasons not entirely clear to us, Qwest does not charge its customers for
what it regards as a toll call if the originating number and the paging number are
in the same local calling area. Accordingly, Mountain has no incentive to enter
into a wide area calling arrangement with Qwest. Mountain s system of
interconnection provides it no advantages other than those to which, presumably,
18 Order No. 28601 at p. 10. (Emphasis added.) In a footnote to the critical language, the Commission
stated Pagers were not entitled to recovery of amounts charged for foreign exchange service or wide area
calling services under the Commission s decision. Id. at n.15.
QWEST CORPORATION'S PETITION FOR RECONSIDERATION, AL TERA TION OR AMENDMENT OF
ORDER NO. 29555, P. 7
it is entitled for free. The Commission nevertheless chooses to term what
Mountain has ordered from Qwest as wide area calling "service " which presto
becomes a reasonable facsimile of a wide area calling agreement. The FCC'
characterization of Mountain s arrangement as a wide area calling "service
" -
sort of a constructive agreement - is rendered even more dubious by the fact that
there are no additional services provided by wide area calling. The only difference
between wide area calling and traditional telephony is the entity billed for the
tollS.
The Court also expressed skepticism over whether the paging company would have
voluntarily agreed to the arrangement.20 Clearly the Court did not understand this issue, unlike
the Hearing Officer and Commission in our case. The configuration was an old, probably pre-
Act, legacy where the paging carrier had purchased the dedicated facilities out of state tariffs in
order to obtain a more ubiquitous presence within the state. In our case, it was well established at
trial that both TelCar and PageData chose to purchase wide area calling facilities from Qwest'
Idaho Price List. The Hearing Officer found:
Mr. Casper testified that Tel-Car has used facilities that allow it to avoid the
payment of toll charges that would otherwise have applied to calls reaching their
interconnection points. Tel-Car used the facilities to avoid toll charges to Hailey
to Twin Falls, but he considered it significant that the facilities were within the
LATA. (Transcript page 145)
****
The petitioners suggest that they have not so agreed; therefore, this "agreement"
provision does not apply. Under the evidence before us, however, we may read
petitioner s prior relationships with Qwest as intending such an agreement and
such a reduction. Certainly there was motivation on the petitioners' part; they
gained the benefit of a toll reduction that made their services cheaper for callers to
gain access to in reaching paging customers.
*****
The record here refutes any claim that there has been no requisite agreement. The
history of petitioners' dealings with Qwest cannot be interpreted fairly to allow
them retroactively to deprive Qwest of revenues in lieu of intrastate toll charges.
19 Mountain Communications v. FCC, supra n., p. 3.
20 Id.
21 Proposed Order, p. 17.
22 Proposed Order, p. 18.
QWEST CORPORATION'S PETITION FOR RECONSIDERATION, ALTERATION OR AMENDMENT OF
ORDER NO. 29555, P. 8
Doing so would allow petitioners to keep the benefits that came from decisions
that the record shows they themselves undertook to make their network more
valuable to paging customers. The clearly appropriate conclusion in light of the
FCC's decision is that pagers who have made retail tariff orders, and who have
had the benefit of facilities that used not only to deliver traffic, but also to reduce
toll charges, should pay for them as the record shows they agreed to do. Simple
logic and fairness would compel this same result even had the FCC not so limited
its ruling.
It is important to note that the D.C. Circuit's decision did not rule that ILECs must cease
charging for legitimate wide area calling arrangements. To be sure, the Court raised a number of
questions, but stopped short of holding that ILECs cannot charge for wide area calling
arrangements. Unfortunately, the ruling could have been more clear in its exact holding, instead
of finding it unnecessary to reach critical issues. Thus, disagreement between Qwest and
Mountain Communications over the meaning of the D.C. Circuit's decision has prevented
settlement or even agreement on a procedure to move forward. Meanwhile, the FCC has done
nothing; Qwest is hopeful, however, that sooner or later the FCC will realize it must deal with
the remanded Mountain case.
F or these reasons, the Commission should avoid getting ahead of the federal regulators
and the Court. Qwest believes it is reasonably likely that, by the time of oral argument in the
Pagers' Supreme Court appeal , there will be a clarification of federal law that may shed some
light on a way out of the present difficulties facing the parties, the Commission, and the Idaho
courts.
Wide Area Canine:: Calculation Error in Remand Order
Even if the Commission declines to reconsider the merits of its decision on the wide area
calling issue, Qwest believes there is a calculation error. The Commission appears to have
23 Proposed Order, p. 19.
QWEST CORPORATION'S PETITION FOR RECONSIDERATION, AL TERA TION OR AMENDMENT OF
ORDER NO. 29555, P. 9
accidentally included 800 Pageline in the services to be credited, contrary to the language of the
Remand Order itself.
Not only did the Commission adopt the provisions from the Hearing Officer s proposed
Order; the Commission went to considerable trouble to careful articulate the factual basis for
and policy reasons behind, such a rule. The Commission found as a matter of fact that the Pagers
they themselves decided to order, and pay for, the wide area calling/ toll reduction facilities?4 In
Order No. 29064, the Commission stated:
These arrangements include: 800 serVice, DID configurations, reverse billing or
reverse toll, FX (foreign exchange), and other possible configurations such as
frame relay
Transit Traffic
The Commission s decision on the transit traffic issue is of great concern to Qwest. The
Commission has gone far any other court or commission in imposing transit-related obligations
on ILECs. If rehearing is granted, Qwest will present evidence regarding the difficulties in the
measurement of such traffic. Qwest currently does not know if it will be able to develop a transit
record product for purchase of Type 1 services. Qwest would like an opportunity to present its
case to the Commission.
The Commission s decision will have huge ramifications in the industry. Today, all
ILECs charge pagers for transit traffic, and with Type 1 , a transit factor is invariably used. No
ILECs, to Qwest knowledge , have any transit record product. But at any rate, Qwest believes that
a ruling of this magnitude, based on Qwest's answers to a few limited questions asked by the
Commission, simply does not provide enough procedural due process, and certainly does not put
24 Order No. 29064 pp. 26-31; Order No. 29140 at pp. 36-40.
25 Order No. 29064 at 28.
QWEST CORPORATION'S PETITION FOR RECONSIDERATION, ALTERATION OR AMENDMENT OF
ORDER NO. 29555, P. 10
the Commission in the best position of receiving all critical information before taking such a
bold step out if front of other regulators of the telecommunications industry.
Thus, Qwest requests that the Commission grant rehearing on this issue, and convene a
scheduling conference to discuss what type of hearing would provide a sufficient factual record
for the Commission s decision.
Qwest respectfully asks the Commission to revisit its transit decision. There is nothing in
the Circuit Court'Mountain decision requiring such a result. In fact, the issue was simply
dropped. There is legal decision on these issues, either requiring an ILEC to cease charging
for transit traffic, or to provide OCN records, much less even any hint of a decision that an
ILECs must refund past charges for transit traffic.
For the foregoing reasons, the Commission should grant Qwest Corporation s Petition for
Reconsideration on Order No. 29555, or in the alternative, Qwest Corporation s Alteration or
Amendment of Order No. 29555.
DATED this 23rd day of August, 2004.
Respectfull y Submitted
Adam Sherr
Qwest Communications, Inc.
1600 7th Avenue - Room 3206
Seattle, W A 98191
and
$sf 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 PETITION FOR RECONSIDERATION, AL TERA TION OR AMENDMENT OF
ORDER NO. 29555, P. 11
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 23rd 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
5Q U.S. Mail
Facsimile
Federal Express
Don Howell
Idaho Public Utilities Commission
472 West Washington
Boise, ID 83702
Telephone: [phone]
Fax: [phone]
rtJ Hand Delivery
D U.S. Mail
Facsimile
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-;;~
William J. Batt
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QWEST CORPORATION'S PETITION FOR RECONSIDERATION, AL TERA TION OR AMENDMENT OF
ORDER NO. 29555, P. 12