20040609Petitioners Reply to O N 29491.pdf

..Ii'
Jim Jones (ISB #1136)
JIM JONES & ASSOCIATES
1275 Shoreline Lane
Boise, Idaho 83702-6870
Telephone: Boise [phone]
Attorney for Petitioners/Appellants
ORIGINAL
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE JOINT
PETITION OF ROBERT RYDER, d/b/a
RADIO PAGING SERVICE, JOSEPH B. )
MCNEAL, d/b/a P AGEDA T A AND
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
vs.
IDAHO PUBLIC UTILITIES
COMMISSION
Respondent on Appeal
and
QWEST CORPORATION
Respondent/Respondent on
Appeal.
Supreme Court Docket No. 29175
IPUC Docket No. T -99-
PETITIONERS' REPLY PURSUANT
TO IPUC ORDER NO. 29491
Idaho "yane Utmtl,. Oommtl8ton
Oftlc, of 'h' SecretaryR!OEIV~"
JUN - 8 200~
BoIse, Idaho
PETITIONERS' REPLY PURSUANT TO IPUC ORDER NO. 29491 -
As directed pursuant to IPUC Order No. 29491 , the Petitioners hereby submit their
response to the questions raised in the Order, including their reply to Qwest's Response. At
the outset, it should be noted that Qwest is still at odds with definitive rulings that have been
made against its position. For instance, in its response to Question No., Qwest argues that
PageData and Tel-Car "voluntarily entered into toll buy-down agreements by ordering the
wide-calling services from Qwest's tariffs/price lists." This is precisely the argument that the
DC Circuit Court of Appeals repudiated in Mountain Communications v. Federal
Communications Commission, 355 F.3d 644 (D.C. Cir. 2004), at page 8 of its slip opinion
(copy attached). The Court stated
, "
The FCC's 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.
Throughout this proceeding, Qwest has essentially ignored the provisions of the
Telecommunciations Act of 1996, 47 U.C. ~~ 151 , et seq. (Act), treating the Petitioners
like regular residential or business customers, rather than telecommunications carriers.
Qwest has refused to provide facilities required for interconnection, despite its requirement
to do so under the Act, contending that it must be paid for any facilities provided. It has
refused to provide a single point of interconnection, despite the clear requirement of 47
C. ~ 251(c)(2)(B), as the DC Circuit confirmed at page 3 of the slip opinion. Instead
Qwest has required that "paging interconnectors establish points of connection in each local
calling area , saying "Qwest does not agree that the Petitioners could establish a single point
of connection in the MT A, and require Qwest to route all traffic to it." Petitioners ' Exhibit
112
p.
copy attached)Qwest continues to take the position that it should
compensated for transit traffic by the downstream parties (Petitioners), as opposed to the
PETITIONERS' REPLY PURSUANT TO IPUC ORDER NO. 29491 - 2
normal practice of obtaining compensation from the upstream parties, despite the fact that
Qwest has not and will not provide billing information to the Petitioners for the transit traffic
and despite the fact that Qwest has probably already been compensated for the transit traffic.
It continues to be the position of the Petitioners that they are entitled to a refund of all
sums that they paid to Qwest during the time periods relevant to this proceeding. From the
very beginning, decisions by Circuit Courts and the FCC have provided increasing support
for that position. Petitioners will first address the seven questions raised by the Commission
showing how the Mountain Communications and other rulings dictate Commission action
requiring Qwest to make such a full refund. Certain exhibits that are integral to the question
responses are attached. Also attached for convenient reference are certain exhibits and pages
of the reporter s transcript that may be of assistance to the Commission. Finally, attached and
incorporated as Appendix A is an overview analysis prepared by Joseph McNeal on behalf of
PageData.
Wide Area Callin2
Commission Question No. For each Pager, provide the total amount of wide area
calling charges (e., 800, FX, DID, etc.) assessed by Qwest. Describe with specificity the
exact wide area calling service (if any) that each Pager utilized.
Response. In the proceeding before the Commission, Qwest characterized the lion
share of charges assessed against, and paid by, PageData (and its predecessor in interest
InterPage of Idaho) as being excluded from reimbursement. The exclusion was based upon
the claim that the facilities involved in transporting traffic to PageData s point of
interconnection in Boise were either private lines not necessary for interconnection or were
wide area calling services for it could charge. To a lesser degree, Qwest maintained the same
PETITIONERS' REPLY PURSUANT TO IPUC ORDER NO. 29491 - 3
position with regard to Tel-Car. The DC Circuit's Mountain Communications decision
debunks Qwest's contentions.
Based solely on records provided by Qwest, it appears that the amounts billed by
Qwest for what it would characterize as wide area calling and! or traffic not related to
interconnection are $158 248.75 for PageData and $21 749.07 for Tel-Car, exclusive of
interest. These are charges for traffic that should have been transported at no charge by
Qwest, pursuant to Mountain Communications
Pa2eData
Joseph McN eal testified in these proceedings that he was seeking to recover
$240 756., representing the amount that he and InterPage had been billed by, and paid to
Qwest for delivery of paging traffic to his point of interconnection in Boise. The accounts
representing these charges are set out in Petitioner s Exhibits 109 and 122. He testified that
the lines in question funneled all of the traffic from his service area in southern Idaho
including Rexburg, Idaho Falls, Pocatello, Burley, Twin Falls and Ketchum, to his main
office in Boise. He stated that Boise was the location of his point of interconnection. Mr.
McNeal testified that the accounts shown on Exhibit 122 included plain old telephone service
(POTS) lines, leased lines, and the frame relay, all of which were part of his paging system.
He testified that the lines were "dedicated facilities to connect the paging together" and were
used to bring the paging calls into the system and funnel the traffic to the point of connection
in Boise. He testified that Exhibit 122 dealt only with paging bills and that it was Qwest that
made the determination as to which lines were part of the paging business. When asked if
Qwest "assigned the accounts between your paging business and the nonpaging services , he
answered
, "
Yes, they did"Tr.
, p.
497, 1. 1
p.
499, 1. 7. He indicated that paging lines and
PETITIONERS' REPLY PURSUANT TO IPUC ORDER NO. 29491 - 4
regular business lines were coded separately in his accounting system and that his request for
reimbursement did not include the latter. Tr.
, p.
525 ll. 3-10. None of this testimony was
rebutted or contradicted. Indeed, Qwest presented no testimony as to how Mr. McNeal'
system was configured or utilized. Qwest's witness, Sheryl Fraser, had no idea how the
paging system was configured or whether POTS lines or leased lines were utilized to
transport paging traffic. When asked if she knew whether a Pocatello leased line (232-7709)
was used for transport to the point of connection she stated
, "
, I wouldn t - I wouldn
know.Tr., p. 409, ll. 10-25. Indeed, she testified that Qwest does not "really keep track of
what (a POTS line is) used for." Qwest just automatically regards such a line as not being
eligible for reimbursement under the TSR Order. Tr., p. 460 1. 13
p.
461, 1. 13. Qwest
peremptorily excluded each and every leased line and every other facility or mechanism that
was designed and utilized to transport PageData s southern Idaho traffic to the Boise point of
interconnection, without even inquiring as to its use or purpose.
Ms. Fraser testified that the POTS lines, leased lines, frame relay, and the like were
considered to be dedicated transport for which Qwest could charge under the TSR Order.
She quoted language from the Order to the effect that "Section 51.703(b) of the (FCC'
Rules does not prohibit LECs from charging in certain instances for wide area calling or
similar services where a terminating carrier agrees to compensate the LEC for toll charges
that would otherwise have been paid by the originating carrier s customer." She stated that
the charges for the lines in question were not subject to being refunded because the TSR
Order did not require it and because by using dedicated facilities that cross local calling areas
a pager was implicitly agreeing to a wide area calling or reverse billing arrangement. Tr.
, p.
410
p.
418, 1. 1.
PETITIONERS' REPLY PURSUANT TO IPUC ORDER NO. 29491 - 5
PageData s system is configured as set forth in the diagram attached and incorporated
as Exhibit A. This diagram shows how the PageData traffic within the LATA is funneled
from local calling areas, utilizing POTS lines, leased lines, and the frame relay, to the point
of interconnection in Boise. The lines comprising the system are identified in Exhibit B
which consists of pages 8-16 of Petitioners ' Exhibit 111. The lines acquired from InterPage
of Idaho are identified on page 9 of Exhibit 111. The configuration of the system is
explained in pages 10 and 11 of Exhibit 111. The lines and accounts are identified on pages
12-16 of Exhibit 111. Following the hearing, Qwest prepared two exhibits that identify all
charges made for the identified lines and accounts. Those two exhibits were submitted on
September 11 , 2001 , as Exhibits 4 and 5 to Qwest's Post-Hearing Reply Brief and they are
attached hereto as a single exhibit - Exhibit C. The first page of Exhibit C is Qwest's
Exhibit 5 which compares PageData s record of payments for the lines and accounts
comprising its paging system with Qwest's record of payments. Qwest indicates at the top of
the exhibit that PageData s record, which was compiled from Petitioners ' Exhibits 109 and
122 , is for 1-96 through 9-99. PageData s payment record was actually for 8-96 through 9-
99. Qwest notes that its record of payment is for 11-96 through 8-99. Qwest shows that it
received $245 628.51 on the PageData accounts from November of 1996 through August of
1999. This excludes charges for T-1 lines and frame relay, totaling $14 926.80. The next
four pages of Exhibit (Qwest's Exhibit 4) document the payments made during the
relevant time frame for DID service, the leased lines, and the POTS lines, all of which the
unrebutted testimony established were used in PageData' s paging system to bring traffic to
its point of interconnection. Thus, using Qwest's own figures, there can be no doubt that
PageData paid $245 628.51 for the lines and accounts identified in Exhibit C between
PETITIONERS' REPLY PURSUANT TO IPUC ORDER NO. 29491 - 6
November of 1996 and the end of August of 1999. If one adds the $14 926.80 for the T-
lines and frame relay, which Qwest indicates on the first page of Exhibit C that it has "
info" about, the total is $260 555.31.
Of all of the payments that Qwest acknowledged having received frOITI: PageData, as
listed on page 1 of Exhibit C, Qwest only considered the first line item, in the amount of
$87 390 (rounded), as being a payment subject to reimbursement. This figure is what Qwest
shows in Qwest Exhibit 3 to Qwest's Recalculation of Billing Credits, dated January 15
2002. A copy of that exhibit is attached hereto as Exhibit D. The figure in question appears
in both of the right-hand columns as "Payments . Qwest essentially ignored the other
$158 248.75 that PageData paid during the relevant time frame for lines and accounts used in
its paging system, as well as the $14 926.80 that PageData paid for the frame relay and T-
lines. The basis for ignoring these additional payments was that they couldn t be related to
transportation of traffic or interconnection because they were leased lines POTS lines
private lines, or whatever. The exclusion was not based on any study or evaluation of the
PageData system to see whether the lines were actually used for transporting traffic. The
exclusion was merely based upon Qwest's contention that they were wide area calling
services that did not have to be furnished under the authority of the TSR order or under the
assumption that a POTS line or leased line couldn t possibly be used as an integral part of a
telecommunication carrier s system. Mr. McNeal's unrebutted testimony was that these lines
were used in PageData s system. Vic Jackson, Petitioners' expert , testified that POTS lines
can be and are used as an interconnection facility. Tr.
, pp.
564-567.Indeed, he testified
that
, "
the local exchange carrier - in this case, Qwest - is required to deliver the traffic to the
point of interconnection, and how it gets there is not really the important part.Tr.
, p.
565
PETITIONERS' REPLY PURSUANT TO IPUC ORDER NO. 29491 - 7
ll. 6. Indeed, Qwest has recently acknowledged in a letter sent out to telecommunication
carriers on April 30, 2004, that private lines are or have been used for transporting
telecommunications traffic. A copy of that letter is attached and incorporated as Exhibit E.
The letter proposes the elimination of private line transport.
The Mountain Communications decision made it absolutely clear that Qwest could
not charge the Petitioners for transportation of Qwest-originated traffic throughout the
LATA, even if the traffic was across local calling areas established for business and retail
customers.! The Court unequivocally stated that a type one paging carrier, such as Mountain
Communications ( or Petitioners), was entitled "by statute to a single point of
interconnection. Slip opinion
, p.
The Court agreed with Mountain Communications
contention that the TSR Order "rejected a similar effort on the part of an LEC to charge a
paging carrier for transmitting calls to the paging carriers' POI, where the POI and the caller
are in the same LATA but different local calling areas.Slip opinion
, p.
Petitioners
repeatedly made the same contention, without success, in this proceeding. See the attached
excerpts from Petitioners' Exceptions to Hearing Examiner s Proposed Order (pp. 18-, 23
24). The Court noted that the FCC had made the determination that Mountain
Communications, by the way it configured its system, had "obtained a wide area calling
service which is similar to a wide-area calling arrangement, and therefore Qwest was
entitled to charge Mountain for that service." In other words, the FCC had determined that
there was an implicit agreement, the same contention that Qwest makes in this case.
1 An observation that may be appropriate in this regard is that the local calling area for business and residential
customers is different than the local calling area for a telecommunications carrier. As Qwest admitted in Petitioners
Exhibit 118, the local calling area for CMRS providers is the LATA. According to Qwest
, "
In negotiations with
CMRS providers US West has expanded the local calling area as far as federal law will permit: those boundaries are
the LATA boundaries.Exhibit No. 118
p.
2; Tr.
, p.
119, 1. 10 p. 120, 1. 5. Vie Jackson confIrmed this local
calling area for a CMRS. Tr.
, p.
253, 1. 1
p.
254, 1. 2.
PETITIONERS' REPLY PURSUANT TO IPUC ORDER NO. 29491 - 8
However, the Court rejected the implicit agreement argument, indicating that there had to be
an actual agreement between the parties in order for a LEC to charge for wide area calling
services. There is no such agreement in existence between PageData and Qwest.
Shortly before the DC Circuit issued its Mountain Communications decision, the
Fourth Circuit had issued a similar decision in MCImetro Access v. BellSouth Telecom.
(4th Cir. 2003). A copy of the slip opinion is attached. In that case
the Fourth Circuit struck down a provision of an arbitrated interconnection agreement that
allowed BellSouth to charge for the cost of transporting local calls originating on its network
to MCI's chosen point of interconnection , where the point of interconnection was outside the
local calling area where the call originated. The Court concluded:
In sum we are left with an unambiguous rule, the legality of which is
unchallenged, that prohibits the charge that BellSouth seeks to impose. Rule
703(b) is unequivocal in prohibiting LECs from levying charges for traffic
originating on their own networks, and, by its own terms, admits of no
ex cepti ons.
Slip opinion
, p.
13.
In essence, Qwest may not charge PageData for traffic originating on Qwest's system
and transported throughout the LATA to PageData s switch in Boise, even if it crosses local
calling areas, unless a specific agreement exists to allow such charges. There is no such
agreement here. Thus, Qwest is obligated to reimburse PageData the full $245 628.51 that
Qwest documented having received from PageData during the relevant time period
including the $158 248.75 that Qwest apparently peremptorily excluded as being unrelated to
interconnection services or being wide area calling services. To that should be added the
$14 926.80 for charges that Qwest failed to calculate on Exhibit C for frame relay and T-
lines.
PETITIONERS' REPLY PURSUANT TO IPUC ORDER NO. 29491 - 9
Tel-Car
For the same reasons outlined above, Tel-Car is entitled to reimbursement in the total
sum of $21 749.07. Of that amount, $4 174.35 is for what Qwest characterized as "T1 non
local" on page 8 of Qwest's Exhibit 202 and $17 574.72 is for what Qwest claimed were
mobile charges , as documented on pages 24-27 of Qwest's Exhibit 202. Copies of the
pertinent documents are attached hereto as Exhibit F. The $4 174.35 was for transportation
of traffic from Hailey to Twin Falls. The traffic was over a facility that served Tel-Car
point of connection, according to its president, Arden Casper. Tr.
, p.
145. The $21 749.
was for what Qwest characterized as "mobile charges Sheryl Fraser peremptorily
determined that the mobile accounts were not part of the TSR Order. Tr.
, p.
338 ll. and
p.
342 ll. 20-22.Again Qwest excluded these accounts without performing even a
perfunctory examination to see what they were used for or whether they were part of Tel-
Car s paging system. Obviously, they were. There is nothing in the TSR Order that says that
mobile service or mobile charges are not subject to the same rules that apply to all other
telecommunications facilities and traffic. If such charges were related to getting the traffic to
the point of interconnection, they are eligible for reimbursement. Indeed, the very name of a
paging carrier
, "
Commercial Mobile Radio Service would seem to indicate that such
companies may well employ "mobile services" in their paging systems. Tel-Car certainly
did. As a matter of fact, when Qwest initially calculated the amounts that Tel-Car was
eligible to receive reimbursement for, the mobile charges were included in the calculation.
The initial calculation that included the mobile charges was entered into evidence as
Petitioners ' Exhibit 104 , a copy of which is attached hereto as Exhibit G. That calculation
was performed on November 30, 2000. Three months later Qwest performed another
PETITIONERS' REPLY PURSUANT TO IPUC ORDER NO. 29491 - 10
calculation, which was admitted into evidence as Petitioners ' Exhibit 105 , a copy of which is
included herein in Exhibit G. That calculation excluded the "mobile services , although in a
different amount than Qwest calculated the charges on pages 24-27 of its Exhibit 202. Mr.
Casper testified that the calculation performed by Qwest in Exhibit 104 correctly stated the
amount of reimbursement he was to receive, except for mileage charges, i.e. the $4 174.
mentioned above. Tr.
, pp.
133-134.In other words, the mobile services were part of the
Tel-Car paging system, utilized to deliver paging traffic to its point of connection.
Therefore, Tel-Car is entitled to reimbursement for the $17 574.72 in mobile charges, as well
as for the transport charges of $4 174.35 for transportation of traffic from Hailey to Twin
Falls.
Commission Question 2.Based on the Record, did any of the Pagers voluntarily
enter into a "buy-down agreement" (e., 800, FX, etc.) with Qwest so that Qwest would not
assess toll charges on its customers' calls to a Pager located in another local calling area?
Response. The answer is no. Mr. McNeal specifically testified that he entered into
no such agreement. Tr., p. 502, ll. There is no evidence that Tel-Car entered into a
wide area calling arrangement, as contemplated by the Mountain Communications decision.
Mr. Casper indicated that there was some sort of agreement to install the line between Hailey
and Twin Falls "maybe 25 years back" but that would have occurred well before the Act and
well before Idaho deregulated services between telecommunication carriers.Qwest's
contention is that PageData and Tel-Car entered into wide area calling or reverse billing
arrangements by ordering facilities that cross local calling areas. Tr.
, p.
417 ll. 17-24. It
true, as Qwest asserts on page 6 of its Response, that the Commission bought off on this
argument. However, the Commission based its finding upon the FCC's determination in this
PETITIONERS' REPLY PURSUANT TO IPUC ORDER NO. 29491 -
regard in Mountain Communications - that an implicit wide area calling arrangement arises
when a pager orders facilities that transport traffic across local calling areas. Qwest appears
to have overlooked the fact that the DC Circuit specifically overruled this determination in its
subsequent opinion. The DC Circuit requires a specific agreement between the parties
relating to wide area calling. There is no such agreement here.
Qwest overlooks the lion s share of wide area calling charges in the table it furnished
in response to the Commission s directive under Question No.2. Another example of
Qwest's fuzzy math. The correct figures, calculated by Qwest, are set out in Exhibit C
hereto.
Transit Traffic
Commission Question No.. Describe in detail the call data provided to Qwest by
the originating wireline, or wireless carrier for all transit traffic to each Pager during the
relevant time periods.
Response. Qwest claims it has no such data. Petitioners have no basis for knowing
whether or not Qwest's response is accurate.
Commission Question No.. Given Qwest's offer to provide transit traffic data to
Mountain, is Qwest in a position to provide transit traffic data to the Pagers in this case?
Response. Qwest claims that it is not in a position to provide transit traffic data to
Petitioners in this case.Petitioners ' expert, Vic Jackson, testified that Qwest had an
obligation under the Local Competition Order to provide this information to Petitioners. Tr.
p.
278 ll. 17-25. However, Qwest has not provided any such information and Petitioners are
not in a position to know whether or not Qwest's response to this question is accurate.
PETITIONERS' REPLY PURSUANT TO IPUC ORDER NO. 29491 -
Commission Question No.. If such transit traffic data is no longer available, is it
appropriate to credit the Pagers for transit traffic?
Response It is quite appropriate to credit the Petitioners for the transit traffic.
pointed out at pages 14-15 of Petitioners' Exceptions to Hearing Examiner s Proposed Order
Qwest never provided the Petitioners with information that would permit them to bill the
persons making the transit calls. Mr. Ryder indicated that he had received no information
regarding the identity of the transiting callers. Tr.
, p.
113.Mr. McNeal testified likewise.
Tr.
, p.
176. Petitioners' expert, Vic Jackson, testified that under the Local Competition
Order, Qwest had the obligation to provide this information to paging companies. Tr.
, pp.
278-80. This testimony was unrebutted. It would be inequitable to allow Qwest to recover
transit charges where it has failed to carry out its responsibility of providing proper billing
information to the paging carriers so that they can recover these charges from the initiators or
originators of the traffic.
Qwest claims that, although it agreed to provide this information to Mountain
Communications, it has no responsibility to provide the information to the Petitioners. If
Mountain Communications is entitled to receive the information, Petitioners are also entitled
to receive the information pursuant to 47 U.C. ~ 251(c)(2)(D), which requires LECs to
provide interconnection to telecommunication carriers on a nondiscriminatory basis. If
Mountain Communications is entitled to the information, Petitioners are also entitled to it.
Qwest will not provide it, the Petitioners should receive a credit.
The Mountain Communications Court noted the "standard practice of charging the
cost of calls to the network of the party initiating the call.Slip opinion
, p.
10.That
standard practice was mentioned a number of times in the present record. Petitioners' expert
PETITIONERS' REPLY PURSUANT TO IPUC ORDER NO. 29491 -
Vic Jackson, testified that it was accepted practice in the telecommunications industry for a
carrier to obtain compensation for traffic from the upstream carrier. He indicated that this
rule of the road" had been addressed in the TSR order. Tr.
, p.
288, 1. 16
p.
289, 1. 11.
Qwest's witness, Sheryl Fraser, indicated that Qwest could charge the upstream carrier and
that Qwest had looked at this possibility, but that it was not doing so. Tr.
, p.
424, 1. 5
425, 1. 8. This would be the appropriate way to handle the problem, since the downstream
carrier has no way to identify where the call traffic originated, according to Vic Jackson. Tr.
p.
243 ll. 11-14.
Further, Mr. Jackson testified that Qwest is most likely being compensated by the
upstream carrier for most of the transit traffic delivered to Petitioners. According to Mr.
Jackson, the transit traffic is "sent paid call traffic." He testified
, "
So for sent paid call
traffic, we can conclude that Qwest has been compensated for whatever facility they used to
deliver it, and that any compensation paid by someone else would be a double recovery of
their cost." Tr.
, p.
244, 1. 15
p.
245, 1. 22. He testified that he had no idea where Qwest
came up with the 24% transit traffic figure. He testified that the figure should be zero since
Qwest has already been compensated for sent paid call traffic. Tr.
, p.
251 ll. 12;
p.
263 ll.
13-16;
p.
276, 1. 20
p.
277, 1. 15.
Qwest takes the position that it has no responsibility to keep or provide records
pertaining to transit traffic. Tr.
, p.
312 1. 21
p.
313 1. 12.However, if Qwest keeps
records pertaining to Mountain Communications' transit traffic and provides the same to
Mountain Communications, it certainly has similar obligation with regard to these
Petitioners. As the Mountain Communications Court observed, Mountain insisted that the
prospect of reimbursement from the originating carrier was illusory, because Mountain never
PETITIONERS' REPLY PURSUANT TO IPUC ORDER NO. 29491 - 14
receives information from Qwest about which carrier initiates an individual call, and it is
therefore impossible for Mountain to seek reimbursement from a third carrier.Slip opinion
p. 10. Failing to carry out that obligation, Qwest should credit back to Petitioners the 24%
transit factor that the Commission has previously allowed Qwest to keep.
Commission Question No.. During the relevant time periods, what percentage of
transit traffic was wirelines; what percentage was wireless?
Response.Petitioners are unaware of the breakdown of transit traffic between
wireline and wireless. During the relevant time periods, it is likely that most of the traffic
was wire line but it would be hard to assign percentages.
Commission Question No.. As noted in Order No. 29410 at pages 40-, the
Commission authorized Qwest to create three large-region local calling areas (Magic Valley,
Treasure Valley and eastern Idaho) in 1996. These regions were implemented in February,
April and May, 1997, respectively. In Order No. 27633, the Commission approved a cost
recovery methodology for Qwest when local calling (EAS) was authorized between a non-
Qwest exchange and a Qwest local calling region. Would this cost recovery mechanism
support a reduction in the amount of non-compensation transit traffic? If so, by what
amount?
Response.The answer to this question is yes but, without Qwest's cooperation in
performing the calculations, it is difficult to state what the amount would be for each of the
Petitioners.
CONCLUSION
Throughout the hearing of this matter, Qwest and the Petitioners were at odds as to
how the TSR Order should be interpreted. Qwest took the position that the TSR Order
PETITIONERS' REPLY PURSUANT TO IPUC ORDER NO. 29491 -
automatically excluded leased lines and POTS lines from being interconnection facilities
regardless of how they were employed, and permitted Qwest to charge for what it
characterized as wide area calling services, even without a formal agreement.The
Petitioners continually asserted a contrary position. The Mountain Communications Court
adopted Petitioners' point of view and it is respectfully requested that the Commission do
likewise. In other words, it is requested that the Commission require reimbursement of all
amounts paid by the Petitioners during the relevant time periods. For PageData, the amount
without interest, is the $245 628.51 calculated by Qwest on Exhibit C, plus the $14 926.
for the T-1 lines and the frame relay, for a total of $260 555.31. This includes a full credit
for the 24% transit factor, since Qwest has failed to carry out its obligation to furnish the
relevant billing information. With regard to Tel-Car, the figure, without interest, is the
$45 349 shown on Exhibit 105 to have been paid by Tel-Car for charges that Qwest
considered not to have been excluded, plus the $4 174.35 in traffic charges shown on page 8
of Qwest's Exhibit 202 for traffic from Hailey to Twin Falls and the $17 574.72 for mobile
charges shown on pages 24-27 of Qwest's Exhibit 202 , for a total of $67 098.07. For Radio
Paging, the figure would be $57 309., representing a credit back of the 24% transit factor.
It is respectfully requested that the Commission give Petitioners the option of taking
the reimbursement as a credit or cash reimbursement. Qwest has never offered to pay Tel-
Car the amount of its reimbursement. Tel-Car is a Chapter 7 bankrupt (see the attached
Bankruptcy Court order) and simply cannot take advantage of a credit. Qwest has done
nothing to resolve this situation. The bankruptcy trustee is getting extremely anxious as to
how this claim will be realized upon and is in need of doing something in order to close out
the bankruptcy. A credit simply won t work and Qwest should not be rewarded for its
PETITIONERS' REPLY PURSUANT TO IPUC ORDER NO. 29491 -
improper conduct by continuing to have the hammer in this situation. Likewise, the other
Petitioners have supposedly received a credit back but at a rate substantially more favorable
to Qwest than that ordered by the Commission for the time period in question. Again, Qwest
should not be allowed to benefit for its overbilling.
DATED this 8th day of June, 2004.
I HEREBY CERTIFY that on this 8th day of June, 2004, I caused to be served a
true and correct copy of the foregoing PETITIONER'S REPL Y PURSUANT TO IPUC
ORDER NO. 29419 by depositing the same in the United States mail, postage prepaid, in an
envelope addressed to the following:
WILLIAM J. BATT
Marshall, Batt & Fisher
O. Box 1308
Boise, ID 83701
PETITIONERS' REPLY PURSUANT TO IPUC ORDER NO. 29491 -
Raymond W. SetL\:e
SETZKE LAW OFFICF.
4477 Emerald, Suite C-400
Boise, Idaho 83706
, ,
Telephone [phone]~-11
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By.DGputy
TN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF IDAHO
In Re: TELCARINC.
DEBTOR.
Case No. 00..00762
ORDER CONVERTING CASE
TO CHAPTER 7
Creditor Laus Motion to Convert Or Dismiss having come before this Court on
on December 12'11, 2001 at 1:30 P.M.~ pursuanl Notice; and it appearing that debtors are
unable to make payments as required by the confinned plan and are in default on the
same; and it is ,further appearing that it is in the bestinterest of Creditors Lau., and good
cause appearing therefore Wider 11 use Section 1112;
rf IS IffiREBY ORDERED That debtors Chapter 11 case isconvert.ed to a
Chapter 7 case.
, DArED This
..~
LS day of , 2002.
ORDER CONVERTING CASE TO CHAPTER 7
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~tc Da~e: 01/17;2002 Off = 1Ca~~: 00-00762 Form i d; 122
TotaL nQti~es mai led:
Debtor"
Trustee
Aty
T.Lcar Inc, PO8" 414 Meridian, ID 83642
Roedel , Cyrus J 355 W Myrtle St #102, BD;se, IO 83702-7656
crawtorth, Richard E 2~O4 Bank Dr #312t Boise, IO 83705
Set~ke. Raymond W 4477 Emerald #C400, Boi!e, IO 83706
Un;tQd StBtes Trustee, PCB 110, Boise, 10 83701
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