20041122Request for Additional Appeal Record.pdf

DONALD L. HOWELL, II
DONOVAN E. WALKER
DEPUTY ATTORNEY GENERAL
IDAHO PUBLIC UTILITIES COMMISSION
PO BOX 83720
BOISE, IDAHO 83720-0074
[phone]
IDAHO BAR NO. 3366
Attorney for the Respondent on Appeal - Cross Respondent
Idaho Public Utilities Commission
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IN THE PUBLIC UTILITIES COMMISSION OF THE STATE OF IDAHO
IN THE MATTER OF THE JOINT PETITION
OF ROBERT RYDER, DBA RADIO PAGING
SERVICE, JOSEPH MCNEAL, DBA
PAGEDATA AND INTERPAGE OF IDAHO
FOR A DECLARATORY ORDER AND )
RECOVERY OF OVERCHARGES FROM
WEST COMMUNICATIONS, INC.
IDAHO PUBLIC UTILITIES COMMISSION,
Respondent/Respondent on Appeal
Cross ~ellant.
ROBERT RYDER DBA RADIO PAGING
SERVICE, JOSEPH B. McNEAL DBA
PAGEDATA AND INTERPAGE OF IDAHO
AND TEL-CAR, INC.
Petitioners/Appellants -
Cross Respondents
Respondent on Appeal-
Cross Respondent,
and
QWEST CORPORATION
REQUEST FOR ADDITIONAL RECORD
SUPREME COURT
DOCKET NO. 29175
IPUC CASE NO. USW-99-
REQUEST FOR
ADDITIONAL APPEAL
RECORD
TO:THE ABOVE NAMED PARTIES, THEIR ATTORNEYS OF RECORD, AND THE
SECRET ARY OF THE IDAHO PUBLIC UTILITIES COMMISSION
NOTICE IS HEREBY GIVEN, that the Cross Respondent, Idaho Public Utilities
Commission, in the above-entitled proceeding hereby requests pursuant to Rule 19, I.A., the
inclusion of the following material in the agency s record in addition to that required to be
included by the Appellate Rules and the Qwest Corporation s Notice of Cross Appeal filed
September 13 , 2004 and its Amended Notice of Cross-Appeal filed November 9 2004:
Reporter s Transcript:
Agency s record:
13. Qwest's Notice of Cross Appeal filed September 13 2004.
14. Qwest's Calculations Pursuant to Order No. 29603 filed October 15 2004.
15. Qwest's Amended Notice of Cross Appeal filed November 9 2004.
N/A
16. The Pagers' Motion to Strike Qwest Corporation s Calculations Pursuant to
Order No. 29603 filed November 12, 2004.3. I certify that a copy of this timely request was served upon the Secretary of the
Idaho Public Utilities Commission and all parties required to be served pursuant to Rule 20.
DATED this ~"..J day of November 2004.
onovan E. Walker
Deputy Attorney General
Attorney for Cross- Respondent
Idaho Public Utilities Commission
bls/O:USWT9924 additional record dh2
I For the court's convenience the numbering corresponds to the September 17 2004 Order Augmenting the Agency
Record.
REQUEST FOR ADDITIONAL RECORD
CERTIFICATE OF SERVICE
I HEREBY CERTIFY THAT I HAVE THIS 22nd DAY OF NOVEMBER 2004
SERVED THE FOREGOING REQUEST FOR ADDITIONAL RECORD IN SUPREME
COURT DOCKET NO.' 29175 VIA U S MAIL BY MAILING A COpy THEREOF
POSTAGE PREPAID, TO:
JIM JONES
JIM JONES & ASSOCIATES
1275 SHORELINE LANE
BOISE ID 83702-6870
WILLIAM J. BATT
BATT & FISHER LLP
TH FLOOR
101 S CAPITOL BLVD
PO BOX 1308
BOISE ill 83701
ADAM SHERR
QWEST COMMUNICATIONS, INC.
1600 7TH AVENUE, ROOM 3206
SEATTLE, WA 98191
SECRETARY
CERTIFICATE OF SERVICE
WILLIAM J. BATT, ISB No. 2938
BA IT & 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
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Qwest Communications, Inc.
1600 7th Avenue - Room 3206
Seattle, WA 98191
[phone]
Attorneys for Respondent/Respondent on Appeal/Appellant
IN THE PUBLIC UTILITIES COMMISSION
OF THE STATE OF IDAHO
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.
SUPREME COURT
DOCKET NO. 29175
IPUC DOCKET NO. T -99-
- - -- - - - - - -- - - - - --- - - - - -- - - -- - - ---- -- -- -- - -- - - - -- - -- -- - -----
ROBERT RYDER db a RADIO PAGING
SERVICE, JOSEPH B. MC NEAL DBA
AGED ATE AND INTERP AGE OF IDAHO
. ..
AND TEL-CAR, INC.
NOTICE OF CROSS APPEAL
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Petitioners/ Appellants/Cross Respond~nts
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IDAHO PUBLIC UTILITIES COMMISSION
Respondent/Cross Respondent
and
QWEST CORPORATION
Respo nd en t/Respo ndent
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 OF
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.e., 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 bas~d 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.
(f)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 TeiCar, Inc., or the bankruptcy trustee of Tel Car, Inc., because:
TelCar, Inc. has been liquidated and gone out of existence;
TeiCar, 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, WA 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
COlTect 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]
jS21Hand Delivery
0 U.S. Mail
Facsimile
D Federal Express
By:
William J. Batt
NOTICE OF CROSS APPEAL, P. 6
WILLIAM 1. BAIT, ISB No. 2938
James B. Alderman, ISB No. 6422
BA IT & 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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OT III TitS CQlvlf'1!SSION
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
AGED A 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'
CALCULATIONS PURSUANT TO
ORDER NO. 29603
OR1 GJNAL
QWEST CORPORATION'S CALCULATIONS PURSUANT TO ORDER NO. 29603 , P. 1
INTRODUCTION
On October 5, 2004, the Commission issued Order No. 29603 essentially denying
Qwest Corporation Petition for Reconsideration Alteration or Amendment of the
Commission s Order No. 29555. In 'addition, the Commission discussed the credits previously
ordered to provide to the Pagers in this case, and apparently concluded that the amount of
refunds ordered exceeded the amounts the Pagers "owed." The Commission ordered Qwest to
provide new calculations and data relating to whether the refunds ordered by the Commission
exceeded amounts owed by the Pagers to Qwest, stating:
(WJe direct Qwest to provide up-to-date calculations to confirm that the refunds
apportioned to each Pager: (1) as of November 2002; and (2) for the additional
refunds for wide area calling and transit traffic (with the "800" adjustment),
exceed the amounts the Pagers owed Qwest.
Below, Qwest first discusses the Commission s previous orders to explain the difficulty
presented by the calculations ordered in Order No. 29063. These difficulties primarily relate to
(1) the time at which it is determined how much the Pagers "owe" or "owed" to Qwest, and (2)
what services and charges are included in the calculation.
In any event, Qwest review of the data and calculations shows that that refunds
previously ordered by the Commission do not exceed amounts "owed" by the Pagers, however
defined, and Qwest provides those calculations.
The Commission s Rulings on Credits vs. Cash Refunds
Qwest is unsure whether, at this late state in this long litigation, the Commission is now
departing from its many previous rulings on the credit vs. cash refund issue. Up until Order No.
29603, Qwest believes the Commission s rulings had been clear that the Pagers were entitled to
I Order No. 29603, p. 19.
QWEST CORPORATION'S CALCULATIONS PURSUANT TO ORDER NO. 29603, P. 2
billing credits and not cash refunds. The Commission had accepted Qwest's arguments that
because the Pagers had ceased paying their bills, it would be unfair to order refunds. Now, the
Commission seems to be saying that if the Pagers currently-ordered refunds exceed they "owe
or "owed" at some unspecified point in time, they are now entitled to refunds.
A review of the Commission s prior Orders shows that the law of this case developed
from the Commission s view that because the Pagers were not paying their bills to Qwest, it
would not be fair to order refunds:
Order No. 28626
In Order No. 28626, the Commission rejected the Pagers' request that ordering language
providing for "a billing credit" be struck. The Commission stated:
If this language were removed, the Petitioners would presumably be entitled
reimbursements" but not billing credits. In response, Qwest alleges that
Petitioners did not seek cash reimbursements in their Petition for a Declaratory
Ruling (hereinafter "Complamt"), but did request recovery of amounts charged in
the past. Furthermore, Qwest argues that PageData is not entitled to cash
reimbursements because it will still owe Qwest a substantial amount of money
after any credits are given to it.
...
The Commission fmds 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 A 31.01.01.326 and .331. Accordingly, this request is
denied. 2
EvidentiarvHearinl! and Proposed Order
In the trial of the case in mid-2001 , long after the "recover period" established by the
Commission in this case, the Hearing Officer routinely admitted evidence that the Pagers had
stopped paying their bills. For example, Arden Caspar, TelCar s owner, testified:
. . .. Well, as a matter of fact, I
think the reason that we stopped paying the bills is
that we had made several efforts to get this thing
all resolved, and these were efforts that seemed
2 Order No. 28626, February 5 , 2001.
QWEST CORPORATION'S CALCULATIONS PURSUANT TO ORDER NO. 29603, P. 3
very fair in accordance with our side of the
picture, and we presented these over time and again
and never got response from the Qwest people, so
consequently, we then stopped paying the bills if
for no other reason, to get attention.Q. Okay. And do you believe it's proper
that you not pay your bills because Qwest
overcharged you illegally?A. Yes. In other words, it's the same
company. In my opinion, Qwest owes us money. Why
should we pay Qwest then?Q. SO you re looking at it as a setoff?A. Yes.Q. And you re not contending that you
have a right not to pay the bill --
A. Oh, no.Q. -- and to collect the amount
1 00 percent from Qwest?A. Right. 3
Mr. Ryder testified as follows on cross-examination:
Q. Have you stopped paying all your bills
from Qwest?A. Yes. Uh-huh. I can t -- I don t have
the exact date that we -- we stopped paying, but we
have stopped paying all of the -- all of the bills
that we had received and had paid promptly. And so
yes, we have stopped.
Q. What's the justification for that?A. Primarily, as a means of saying that
Hey, these charges are in dispute because Qwest owes
us considerably more money than these bills
represent.
Q. Well, which bills are you not paying?
A. We re not paying the specific bills
involving the transport of number -- I mean, of
these numbers. That's where I gather we d call them
the -- the transport charges. And we get two of
these bills: One involving Oregon transport, and
then also Boise or Idaho transport.
10 And then we had a -- we have a
3 Transcript, p. 128.
4 Transcript, p. 120.
QWEST CORPORATION'S CALCULATIONS PURSUANT TO ORDER NO. 29603, P. 4
commercial business line, which we are -- have not
been paying on, along with several other business
lines that we have not been paying on.
Q. Are those ordinary telephone lines?
A. They re business lines, yes.Q. And the transport charges that you
talking about, those are covered by your
Interconnection Agreement, are they not?A. Yes. However, we have difficulty in
determining exactly what those charges are, in that
they are varied from time to time.
Q. Well, would you agree that you do owe
Qwest some amounts for facilities provided under the
Interconnection Agreement?
MR. JONES: Objection, I don t know
that we ve talked about the appropriate time frame.
Are we talking about under the Interconnection
Agreement? What time?
MR. BATT: Well, this really is in
response to Jim s question about why the mention of
the Interconnection Agreement amount due is proper
. on the matrix.
HEARING OFFICER: Yeah, I think that'
fair response to that issue that was raised during
direct.
THE WITNESS: So re:peat the question
please.
Q. BY MR. BATT: Yeah, sure. Would you
agree that today, you owe Qwest charges under your
Interconnection Agreement that you haven t paid?A. I -- I would say, yes, we owe you
charges as you had billed them. Now, the amount
that you had billed seems to be in question
however. 6
Q. Okay. Did I understand your testimony
that you believe the Commission has ordered that you
are entitled to a refund as opposed to a credit, or
did I misunderstand that?
A. Well, I -- I would be satisfied with
either, I suppose, credit or a refund.
Transcript, p. 121.
6 Transcript. p. 122.
7 Transcript, p. 126.
QWEST CORPORATION'S CALCULA TraNS PURSUANT TO ORDER NO. 29603, P. 5
In his Proposed Order, the Hearing Officer discussed and ordered only billing credits.
The Hearing Officer required Qwest to provide new calculations of billing credits, which Qwest
filed on January 15 2002.
Order No. 29064:
The Commission issued its Order No. 29064 on July 17 2002, adopting for the most part
the recommendations of the Hearing Officer, including the ordering of billing credits rather than
cash refunds. The Commission deemed this part of the case the "Credit Phase." The Pagers
sought to raise their claim to a cash refund, rather than a billing credit, again, this time claiming
that the McLeod "unfilled agreement" had provided for cash refunds of certain charges. The
Commission rejected the Pagers' attempt to raise the issue on several grounds , and stated in part:
(TJhe Commission has already rejected the Pagers request to require Qwest toprovide them with cash reimbursements rather than billing credits. In Order No.
28626, the Commission declined the Pagers' request to amend its final prior
Order to require Qwest to provide the Pagers with cash reimbursements rather
than billing credits. Order No~ 28626 at 2. Having previously declined to require
cash reimbursements in Order No. 28626, the Pagers could have sought judicial
review of that issue from the Idaho Supreme Court. The Pagers did not appeal
that decision and the Commission declines to revisit the issue now.
Qwest calculated the billing credits ordered the Commission, which were filed with and
approved by the Commission. In accordance with the Commission s Orders, the Commission
applied those credits to the Pagers' accounts.
8 Qwest's Recalculation of Billing Credits , filed January 15 2002. '
Order No. 29064, p. 10.
10 Qwest's Recalculation of Billing Credits , filed July 30 2002; Qwest's Application of Billing Credits
filed August 14 2004. Qwest acknowledges and agrees that because TelCar was already in bankruptcy
that point in time, payment rather than credit to the trustee is appropriate, subject to Qwest's rights of
setoff under bankruptcy law.
QWEST CORPORATION'S CALCULATIONS PURSUANT TO ORDER NO. 29603, P. 6
Order No. 29140 '
The Pagers petitioned for reconsideration, and the Commission granted their motion in
part in Order No. 29140. The Commission, however, steadfastly refused to depart from its
previous rulings on the propriety of billing credits. It is this Order that the Commission now
seems to be saying required Qwest to issue refunds rather than credits. When read in whole
however, the Order simply does not so provide. For example:
2. Credits vs. Reimbursements. The Pagers also take issue with the "form" of the
refund due each Pager. In the Commission s Liability Order, we found the Pagers
were entitled "to reimbursement or billing credits." Order No. 28601 at 11. In
the Commission s Credit Order No. 29064 we directed Qwest to "issue the
respective (billing) credits to the Pagers no later than 28 days from ' the service
date of this Order." Order No. 29064 at 31. The Pagers do not claim that Qwest
has failed to issue the billing credits but take issue with the actual form of the
refunds. More specifically, the Pagers assert Qwest should have issued them
reimbursements rather than simply issue credits to their accounts. The Pagers
also claim they requested reimbursement in their initial Petition for Declaratory
Order. "They never asked for a billing credit." Petition for Reconsid. at 2. In the
alternative, the Pagers argue they should have the option of deciding how the
credits should be applied to their Qwest accounts. Id.
Commission Findin!!:s. We decline the Pagers requests and find that it was
appropriate to direct Qwest to issue billing credits in this case for four reasons. I I
First, the Pagers' Petition for Declaratory Order simply stated that they "are entitled
to recovery" of amounts paid or overcharged. Petition for Declaratory Order at 5.
In other words, the Pagers' initial pleading simply sought recovery - they did not
specify the form or manner of refund.
Second, this is the second time the Pagers have pursued this issue. In their Petition to
Amend the Liability Order No. 28601 , the Pagers asked the Commission to remove the language
a billing credit or" so that the form of the refund would be a reimbursement. The Commission
denied this request finding that the Pagers provided no justification for this change. Order
No. 28626 at 2. That Order was a final decision appealable to the Supreme Court. Id. at 10. The
11 We noted in Order No. 29064 at nn. 8, 17 that "billing credits may not be appropriate" for Tel-Car
because the company is no longer in business.
QWEST CORPORATION'S CALCULA nONS PURSUANT TO ORDER NO. 29603, P. 7
Pagers did not appeal. At that time, the Pagers remedy was to seek judicial review. The
Commission will not permit the Pagers to now collaterally attack the prior Order in violation of
Idaho Code ~ 61-625 (final and conclusive decisions shall not be attacked collaterally).
Third, as set out above, at least two pagers acknowledged they stopped paying their
paging bills from Qwest. This fact coupled with the fact they sought much larger refunds
than the Commission eventually ordered, leads us to infer that the credits may not exceed
the arrearages.If this is the case it would be unreasonable to require cash
reimbursements. See Metrocall Order I at ", 12 (Oct. 2, 2001). Finally, Idaho Code
~ 61-641 (concerning overcharges by a utility) empowers the Commission to order Qwest
to "make due reparation to the complainant therefore, with interest from the date of
collection provided, no discrimination will result from such reparation." (Emphasis added).
The statute does not prescribe the form of the refund. In this instance, we find providing
cash reimbursements would be discriminatory.
II.
Calculation of Amounts Due vs. Amounts Owed
We do not believe that the Commission s intent, in its original orders in this case, was
to determine what amounts were owed by the Pagers to Qwest at some time past on certain
accounts, and compare that to the credit amounts, and thereby determine if the Pagers were
entitled to cash payments or billing credits. Because the Pagers stopped paying their bills, it was
clear to Qwest - and we believe to the Commission - that the Pagers would ultimately owe
Qwest much larger amounts than the Commission-ordered credits.
12 In Qwest's Motion to Dismiss and Answer to the Petition to Amend, the Company states that
PageData still owes Qwest a substantial sum after credits are applied." Answer at 5.
QWEST CORPORATION'S CALCULATIONS PURSUANT TO ORDER NO. 29603, P. 8
Thus, Qwest understood the Commission to intend in Order No. 29555 , that Qwest
, would perform that type of calculation. In fact, the Commission stated
, "
(b )ecause the refunds
have been substantially increased from those credits originally calculated by Qwest in July 2002
it is possible that the refund credits might exceed the amounts the Pagers owe Owest, if any. If
the refunds afforded to PageData and Radio Paging exceed the amounts they owe Owest, then
Qwest shall provide them with cash reimbursement within 21 days of the service date of this
Order."l3
Indeed, that is the case today. PageData owes Qwest in excess of $200 000, and Radio
Paging s balance is approximately $20 000. Accordingly, Qwest did not understand the
Commission to have made reference past point in time in determining what the Pagers "owe
Qwest.
However, even a 1999 date, and looking solely at wholesale interconnection services
Qwest believes that amounts owed by the Pagers exceeded the credits that would later be
granted. The following table was prepared by Sheryl Fraser, Qwest's expert:
Pager Exhibit Page Service Date Balance
PageData Qwest 203 Type Billed $120 246
Paging Payments/Adjustments
$87 390
Balance $32 856
69 & Private 750.
Line CRIS
POTS 632.
170.
DID CRIS 144.
502.49
DID CRIS ($8 223.52)
Note: This credit balance was moved to IABS as
. part of the conversion process.
9..$1,463.
Private 212.
13 Order No. 29555 at p. 21.
QWEST CORPORATION'S CALCULATIONS PURSUANT TO ORDER NO. 29603, P. 9
Line lABS
911.46
Radio Qwest 201 Type Billed $53 335
Paging Payments/Adjustments
$50,034
Balance $3 301
Thus, Qwest does not believe that refunds are appropriate. Moreover, how would such
refunds be calculated; that is, at what point in time would debits and credits be compared? What
services would be counted in determining whether there is a positive or negative balance? What
about the billing credits previously ordered by the Commission and already applied - should they
now be reversed?
CONCLUSION
Qwest respectfully requests the Commission to look at this issue once more. If the
Commission still believes, after considering Qwest's comments , that refunds should be provided
to the Pagers, then Qwest requests further guidance on the questions stated above. Qwest would
welcome an informal meeting of the parties and staff to discuss how these would be calculated.
In the meantime, though, it might be helpful to convene the parties, with Sheryl Fraser attending,
to try to work through the calculations.
14 Qwest applied the billing credits for Radio Paging and PageData more than one month ago.
QWEST CORPORATION'S CALCULATIONS PURSUANT TO ORDER NO. 29603, P. 10
DATED this 15th day of October, 2004.
Respectfully Submitted
Adam Sherr
Qwest Communications, Inc.
1600 7th Avenue - Room 3206
Seattle, WA 98191
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 CALCULATIONS PURSUANT TO ORDER NO. 29603, P.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 15th day of October, 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 & As SOCIA TES
1275 Shoreline Lane
Boise, Idaho 83702-6870
Telephone: [phone]
Fax: [phone]
Hand Delivery
S. Mail
Facsimile
Federal Express
Don Howell
Idaho Public Utilities Commission
472 West Washington
Boise, ID 83702
Telephone: [phone]
Fax: [phone]
Ell Hand Delivery
OU.S. Mail
Facsimile
Federal Express
By:
William J. Batt
QWEST CORPORATION'S CALCULATIONS PURSUANT TO ORDER NO. 29603 , P. 12
WILLIAM J. BAIT, ISB No. 2938
BAIT & 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]
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UTili TIES COi"rjt-1iSSION
Attorneys for Respondent/Respondent on Appeal/Appellant
IN THE PUBLIC UTILITIES COMMISSION
OF THE STATE OF IDAHO
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/Cross Respondents
IDAHO PUBLIC UTILITIES COMMISSION
Respondent/Cross Respondent
and
QWEST CORPORATION
R esp ondent/Respo nd en
ell ant.
A ppeal/ Cro ss
AMENDED NOTICE OF CROSS APPEAL, P. 1
SUPREME COURT
DOCKET NO. 29175
IPUC DOCKET NO. T -99-
AMENDED NOTICE OF
CROSS APPEAL
OR' GI NAL
TO: THE ABOVE NAMED CROSS-RESPONDENTS ROBERT RYDER dba RADIO
PAGING SERVICE JOSEPH B. MC NEAL DBA PAGEDATA AND INTERPAGE OF
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, and Order No. 29603, entered in the above entitled action on the 5th day
October, 2004.
The parties have a right to cross appeal to the Idaho Supreme Court. The orders
described in paragraph 1 above as they are appealable final orders 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 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.
(b)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.
AMENDED NOTICE OF CROSS APPEAL, P. 2
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.
DATED this 9th day of November, 2004.
Respectfull y S ubmi tted
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]
AMENDED NOTICE OF CROSS APPEAL, P. 3
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 9th day of November, 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
!Xl U.S. Mail
Facsimile
Federal Express
Don Howell
Idaho Public Utilities Commission
472 West Washington
Boise, ID 83702
Telephone: [phone]
, Fax: [phone]
Hand Delivery
D U.S. Mail
Facsimile
Federal Express
1Ji
By: lJVv~
William J. Batt
AMENDED NOTICE OF CROSS APPEAL, P. 4
Jim Jones (ISB #1136)
JIM JONES & ASSOCIATES
1275 Shoreline Lane
Boise, Idaho 83702-6870 .
Telephone: Boise [phone]
CEI \.If\ Co
ORIGINAL
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UTILi rlES GOr1HISSION
Attorney for Petitioners/Appellants/Cross- Respondents
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE JOINT
PETITION OF ROBERT RYDER, d/b/a
RADIOP AGING SERVICE, JOSEPH B. )
MCNEAL, d/b/aPAGEDATAAND
, INTERP AGE OF IDAHO, AND
TEL-CAR, INC., FOR DECLARATORY )
ORDER AND RECOVERY OF
OVERCHARGES FROM U.S. WEST
COMMUNICATIONS INC.
ROBERT RYDER, d/b/a RADIO
PAGING SERVICE, et aI.
Petitioners/ Appellants-
Cross-Respondents
vs.
IDAHO PUBLIC UTILITIES
COMMISSION
Respondent on Appeal
and
QWEST CORPORATION
Respondent/Respondent on
Appeal- Cross-Appellants.
, Supreme Court Docket No. 29175
~~w
IPUC Docket No. T -99-
MOTION TO STRIKE QWEST
CORPORATION'S CALCULATIONS
PURSUANT TO ORDER NO. 29603
MOTION TO STRIKE QWEST CORPORATION'S CALCULATIONS PURSUANT TO
ORDER NO. 29603 -
The Petitioners hereby move the Commission for entry of an order striking Qwest
Corporation Calculations Pursuant to Order No. 29603 ("Qwest Calculations ) and
requiring Qwest to make an immediate cash refund of all amounts heretofore determined
the Commission to be owing to the Petitioners. This motion is made on the following
grounds:
(a)Qwest Corporation s most recent calculations are not made pursuant to
Order No. 29603. Rather, the calculations are in defiance of the Commission
order. Instead of performing straight-forward calculations, as ordered by the
Commission, Qwest has used the document as a means to reargue its case and
to attempt to assess bogus charges against the Petitioners in effort to reduce
their reimbursement to nothing.
(b)By giving Qwest Corporation the option of granting either a cash
refund or a billing credit the Commission has allowed Qwest an affmnative
defense (set-off) that was neither pleaded nor proven.
When this proceeding was initiated, the Petitioners alleged that Qwest had charged
them for facilities and services that were required to be provided without charge under federal
law. The Petitioners sought "recovery of amounts paid" commencing in September of 1996.
See, Agency Record on Appeal (H
), p.
5. At no time did Qwest file an answer asserting
any. affirmative defenses. Set-off is an affirmative defense which must be pleaded and
proven by the person asserting it. According to Commission Rule 57.02.a and b, affirmative
defenses must be separately stated in the answer and failure to do so generally prohibits the
party wishing to rely on the affirmative defense from asserting it in the proceeding. ADAP A
31.01.01.057.02.a. and b. Not only must an affirmative defense be asserted in the answer, it
, MOTION TO STRIKE QWEST CORPORATION'S CALCULATIONS PURSUANT
ORDER NO. 29603 - 2
must be proven by the party asserting it. See Pace v. Hymas, 111 Idaho 581 , 586, 726 P.
693 (1986) ("where the defense to an action is of an affirmative nature, the defendant
becomes the proponent, and has the burden to bear.
There is no question but that the option granted by the Commission to Qwest to issue
billing credits, in lieu of making cash refunds of the improper charges, amounted to a set-off.
According to the Idaho Supreme Court:
Setoff is an equitable doctrine. It is based on the principle that where two
parties are mutually indebted, justice requires that the debts be set off and that
only the balance is recoverable. See 20 Am. Jur. 2d Counterclaim
Recoupment, and Set Off 9 7 (1965).
Intern. Equip. Servo V. Pocatello Indus. Park, 107 Idaho 1116 , 1119, 695 P.2d 1255 (1985).
Set-off is an affirmative defense and must be either pleaded as such or pleaded as a
counterclaim. Flemingv. Hathaway, 107 Idaho 157, 160-, 686 P.2d 837 (Ct. App. 1984).
There can be no question but that Qwest failed to assert a set-off defense or counterclaim in
any answer.
Nor was a set-off proven with regard to any of the Petitioners. While the hearing
examiner required fastidious proof from Petitioners as to the amounts they had paid for the
services and facilities that should have been provided to them by Qwest free of charge, there
was no requirement that Qwest carry the burd~n of proving any claim that it might have to a
set-off. Indeed, since the issue was not pleaded by Qwest, the issue was not subject to being
tried at the hearing.
In its latest calculation, Qwest states in footnote 14 on page 10 that it "applied the
billing credits for Radio Paging and PageData more than a month ago." There was never any
MOTION TO STRIKE QWEST CORPORATION'S CALCULATIONS PURSUANT TO
ORDER NO. 29603 - 3
directive from the Commission for it to do so. Rather, in Order No. 29555 the Commission
ordered that the refunds be made in cash.
When the Petitioners were seeking to establish the amount of the reimbursement to
which they were entitled, they were required to confine their proof to the relevant timeframe
as determined by the Commission. With regard to Radio Paging and PageData, the relevant
timeframe ended at the time their respective interconnection agreements were approved by
the Commission.However Qwest has not regarded the time that the interconnection
agreements were approved as the end of its claims for set-off. Qwest has continued to assert
that it is entitled to set off under the interconnection agreements. So, it has applied the
amounts it claims to be owed pursuant to the interconnection agreements of Radio Paging
and PageData against the amounts determined to be owing to them for overcharges. If
allowed to do so, Qwest will not have had to prove its entitlement to a set-off and will be in a
position to determine unilaterally how much the charges should be for periods both before
and after approval of the interconnection agreement.
To see how skewed the result is, let us take the example of Radio Paging. As set forth
in Petitioners' Exhibit No. 103 , Radio Paging paid a steady $1 811.67 per month during the
entire period in question (November 1 , 1996 to September 10, 1997).Early on this
proceeding, the Commission ordered that 76% of each monthly payment be refunded or
credited back to Radio Paging. Upon remand this year, the Commission ordered that the
remaining 24% of the monthly payments be refunded or credited back to Radio Paging. This
amounts to a 100% refund or credit. Although the Commission came out with a different
number, a simple calculation would produce a recovery amount of $54 953.99, exclusive of
interest. This is money which was actually paid to Qwest during the relevant timeframe. If
MOTION TO STRIKE QWEST CORPORATION'S CALCULATIONS PURSUANT TOORDER NO. 29603 - 4
, Qwest was not entitled to charge any of the $1 811.67 per month during the period of time in
question, it would seem that the very same services and facilities should have been provided
to Radio Paging free of charge after September 10, 1999 under the Qwest-Radio Paging
interconnection agreement. After all, the Commission can take official "notice that the
interconnection agreement inquesti.on has a change of law provision (Section 1.2), stating
that a change in the law will amend the agreement where "it reasonably appears that the
Parties would have negotiated and agreed to different term(s)". A copy of the provision is
attached. Does anyone believe that Radio Paging would have agreed to pay a, 24% transit
traffic charge in its interconnection agreement if that provision had not been forced upon
Radio Paging? The Commission s recent ruling on this issue should be applied to the ,transit
traffic charges levied under the interconnection agreement, as the Commission has applied it
to charges levied during the relevant timeframe for this proceeding. However, in calculating
the am.ount .of credit that Qwest claims Radio Paging is entitled to, i., about $20 000, Qwest
has obviously chosen to set off the transit traffic charges , accumulated under the
interconnecti.on agreement against the amount found to be owing to Radio Paging. See
Qwest Calculations
, p.
9. In .other words, Qwest is unilaterally claiming a bogus set-off for
a period that extends fr.om and after 'September 10, 1999. Radio Paging has never had the
opportunity to submit pr.oof to the C.ommission to show that this is an inappropriate set-off.
This is a set-.off with a vengeance. The situation with regard to PageData s recovery is the
same.
If the Petitioners .owe something to Qwest for services provided either before or after
they entered into their interconnection agreements, it is a matter that should be detennined in
a separate pr.oceeding where the parties are on notice of what the issues are and have a fair
MOTION TO STRIKE QWEST CORPORATION'S CALCULATIONS PURSUANT TO
ORDER NO.29603 - 5
opportunity to present their evidence and defenses. There has never been such an opportunity
for Petitioners. By allowing Qwest to have a set-off
, '
which it neither pleaded nor proved, the
Commission has allowed this matter to descend into a quagmire. Qwest has not had to pay
one thin dime to any of the Petitioners and has no, intention of doing so. It claims that
refunds are inappropriate, even though it failed to file for, or prove its right to, a set-off. It
agrees that there is substantial confusion in the current case posture. According to Qwest:
Moreover, how would such refunds be calculated; that is, at what point in time
would debits and credits be compared? What services would be counted in
determining whether there is a positive or negative balance? What about the
billing credits previously ordered by the Commission and already applied should they now be reversed?
Qwest Calculations, p. 10. And, in its Amended Notice of Cross-Appeal, Qwest asserts:
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.
The only way to get out of the quagmire and to provide the clarity desired by all
parties is to strike the Qwest Calculations as being inappropriate and nonresponsive to Order
No. 29603, to order that the refunds calculated pursuant to Order No. 29555 be immediately
paid in cash ($57 467 to Radio Paging, $52 848 to Tel-Car, and $101 950 less the $5 007
provided for in Order No. 29603, or $96 943, to PageData), and to provide that any claims
Qwest may have against the Petitioners be determined in other proceedings.
DATED this 10th day of November, 2004.
MOTION To. STRIKE QWEST CORPORATION'
ORDER NO. 29603 - 6
CERTIFICATE OF SERVICE
HEREBY CERTIFY that on this 10th day of November, 2004, I caused to be
served a true and COlTect copy of the foregoing MOTION TO STRIKE QWEST
CORPORATION'S CALCULATIONS PURSUANT TO 'ORDER NO. 29603 by depositing
the same in the United States mail, postage prepaid, in an envelope addressed to the
following:
WILLIAM J. BATT
Marshall, Bart & Fisher
O. Box 1308
Boise, ill 83701
DON HOWELL
Idaho Public Utilities Commission
472 West W
Bois ill
MOTION TO STRIKE QWEST CORPORATION'S CALCULATIONS PURSUANT TO
ORDER NO. 29603 - 7