20040914Notice of Cross Appeal.pdf

WILLIAM 1. 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]
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Adam Sherr
Qwest Communications, Inc.
1600 7th Avenue - Room 3206
Seattle, W A 98191
[phone]
Attorneys for Respondent/Respondent on Appeal! Appellant
IN THE PUBLIC UTILITIES COMMISSION
OF THE ST ATE OF IDAHO
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.
SUPREME COURT
DOCKET NO. 29175
IPUC DOCKET NO. T -99-
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
ROBERT RYDER db a RADIO PAGING
SERVICE, JOSEPH B. MC NEAL DBA
AGED A TE AND INTERP AGE OF IDAHO
AND TEL-CAR, INC.
NOTICE OF CROSS APPEAL
Petitioners/ Appellants/Cross Respondents
IDAHO PUBLIC UTILITIES COMMISSION
Respondent/Cross Respondent
and
QWEST CORPORATION
Re spo nden tiRe spo nden t
Appellant.
Appeal/Cross
NOTICE OF CROSS APPEAL, P. 1
TO: THE ABOVE NAMED CROSS-RESPONDENTS ROBERT RYDER dba RADIO
AGING SERVICE JOSEPH B. MC NEAL DBA P AGEDA T A AND INTERP AGE
IDAHO, AND TEL-CAR, INC. AND THE IDAHO PUBLIC UTILITIES COMMISION AND
THE PARTIES' ATTORNEYS, JIM JONES , 1275 SHORELINE LANE, BOISE, IDAHO
83702 DON HOWELL, 472 WEST WASHINGTON, BOISE, IDAHO, 83702 AND THE
CLERK OF THE ABOVE ENTITLED ADMINISTRATIVE AGENCY.
NOTICE IS HEREBY GIVEN THAT:
The above named Cross-Appellant Qwest Corporation (hereinafter "Qwest"
appeals against the above named Cross-Respondents to the Idaho Supreme Court from Idaho
Public Utilities Commission Order No. 29555, entered in the above entitled action on the 2nd day
of August, 2004.
The parties have a right to cross appeal to the Idaho Supreme Court. The order
described in paragraph 1 above as it is an appealable final order pursuant to Rule 15 of the Idaho
Appellate Rules.
Preliminary statement of the issues on cross-appeal:
(a)Whether the Commission erred in ordering Cross-Appellant to credit or
refund certain charges for facilities used to permit Petitioners/Cross-Respondents to provide
wide area calling services, i., charges under Qwest's Idaho Service Catalog for dedicated
transport used to deliver calls from Qwest subscribers to distant paging customers of Petitioners-
Cross Respondents;
(b)Whether the Commission erred in ordering Cross-Appellant to credit or refund
certain charges to Petitioners/Cross-Respondents for facilities used to deliver transit traffic, i.
charges under Qwest's Idaho Service Catalog for dedicated transport used to deliver paging calls
to Petitioners/Cross-Respondents from subscribers of third party carriers (telecommunications
companies other than Qwest), delivered by third party carriers to Qwest for transport to
Petitioners/Cross-Respondents for delivery to their paging customers.
NOTICE OF CROSS APPEAL, P. 2
(c)Whether the Commission erred in ordering Cross-Appellant to include interest in
its calculations of refunds or credits;
(d)Whether the Commission erred by ordering Cross-Appellant to make refunds or
credits based on the Commission s interpretation of unclear decisions of the Federal
Communications Commission, and indeed, by predicting future decisions of the decisions of the
Federal Communications Commission on issues of first impression under federal
telecommunications law.
(e)If the Commission ordered Cross-Appellant to make refunds to Cross
Respondents, rather than to provide billing credits, whether the Commission erred in making
such decision and in failing to provide a clear order to determine how such refunds/ billing
credits or combinations thereof would be determined.
(t)Whether the Commission erred by ordering Cross-Appellant to refund or credit
Petitioners/Cross-Respondents for 1-800 Pageline services.
(g)
Whether the Commission erred by (i) ignoring its previous findings, conclusions
decisions and orders in this lengthy case, (ii) considering evidence outside the record; (iii)
ignoring the law of the case and abusing its discretion by arriving at its findings, conclusion, and
holdings without regard to the evidence presented at the trial, without an explanation as to the
rationale for its departure from its previous well-reasoned decisions.
(h)Whether Petitioner/Cross-Respondent TelCar, Inc. should be dismissed
from this appeal for lack of subject matter jurisdiction, because TelCar, Inc. had been liquidated
in bankruptcy and gone out of existence before the original Notice of Appeal was filed in this
case and TelCar s bankruptcy trustee did not authorize pursuit of the appeal until some time
later.
NOTICE OF CROSS APPEAL, P. 3
(i)Whether the Commission erred in ordering Qwest to make refunds
to TelCar, Inc., or the bankruptcy trustee of TelCar, Inc., because:
TelCar, Inc. has been liquidated and gone out of existence;
TelCar, Inc.s bankruptcy trustee has not appeared in this matter
before the Commission;
The Supreme Court has no subject matter jurisdiction with respect to
the claims of the bankruptcy trustee because said trustee did not timely file a notice of appeal;
, and
This Commission has no jurisdiction on remand from the Supreme
Court, and the previous orders of the Commission with respect to the nonexistent entity, TeiCar
Inc. became final when no authorized appeal was taken by the trustee.
There has not been an order entered sealing any portion of the record regarding
this matter.
Reporter s Transcript:
(a)No additional reporter s transcript is requested.
The Cross-Appellate does not request the inclusion of any additional documents
other than those added by the parties as appropriate.
I certify that:
(a)The appellate filing fee has been paid.
(b)That service has been made upon all parties required to be served pursuant
to Rule 20 of the Idaho Appellate Rules.
NOTICE OF CROSS APPEAL, P. 4
DATED this 13th day of September, 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]
NOTICE OF CROSS APPEAL, P. 5
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 13th day of September, 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]
!sa Hand Delivery
0 U.S. Mail
Facsimile
Federal Express
By:
William J. Batt
NOTICE OF CROSS APPEAL, P. 6