20040712Petitioners Response to Qwest Objections.pdf

Jim Jones (ISB #1136)
JIM JONES & ASSOCIATES
1275 Shoreline Lane
Boise, Idaho 83702-6870
Telephone: Boise [phone]
f)FC'C
)\ "- ",j ..
t.~
ORIGINAL
LEO
2004 JUt f 2 pJ1 ': 0'"
: l
",,, "
U TIt I T It S COI"1i~11 S SIGN
Attorney for Petitioners/Appellants
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MA TTER OF THE JOINT
PETITION OF ROBERT RYDER, d/b/a
RADIO PAGING SERVICE, JOSEPH B. )
MCNEAL, d/b/a PAGED AT 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
P AGIN,G SERVICE, et aI.
Petitioners/ Appe~lants
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' RESPONSE TO
QWEST CORPORATION'
, OBJECTIONS TO PETITIONERS'
REPLY AND MOTION TO STRIKE
PETITIONERS' RESPONSE TO QWEST CORPORATION'S OBJECTIONS TO
PETITIONERS' REPLY AND MOTION TO STRIKE -
The objections made by Qwest to the documents attached to or referenced in
Petitioners ' Reply Pursuant to IPUC Order No. 29491 ("Petitioners ' Reply ) are not well
founded. Each and every such exhibit or attachment is contained in the record of this
proceeding, excepting only Exhibit A (Configuration of PageData Paging System), the
Fourth Circuit's slip opinion in MCImetro Access Transmission Services v. BellSouth
Telecommunications, Exhibit E (letter to Joseph McNeal from Qwest, dated April 30, 2004),
and Appendix A. Exhibit A, which shows how the PageData paging system is configured
was submitted in response to Diagram #1 and Diagram #2 to Qwest Corporation s Corrected
Response to IPUC Order No. 29491. If Exhibit A is subject to being stricken, so are
Diagram #1 , Diagram #2, and Diagram #3. The MCImetro decision is applicable law which
obviously can be considered by the Commission. Exhibit E was obviously prepared by
Qwest and sent to PageData after the record in this matter was closed but it certainly should
be considered since it is an admission by Qwest that POTS or private lines have been used
for transporting paging traffic on Qwest's system, an admission which obviously contradicts
the testimony of Qwest's witness Sheryl Fraser. Appendix A will be dealt with below.
The most critical exhibit to the current proceeding is Exhibit C to Petitioners ' Reply.
This document was prepared by Qwest and submitted following the hearing. Qwest was
obligated to furnish to the Commission a full accounting of the PageData and InterPage
accounts, showing payments made on those accounts. During the hearing, Qwest claimed
that it had not been able to reconstruct the accounts. However, following the hearing, Qwest
submitted the material contained in Exhibit C as Exhibits 4 and 5 to Qwest's Post-Hearing
Reply Brief.This account information substantiated PageData s assertion that it and
InterPage had paid at least $240 756.03 for delivery of traffic to these paging systems, as
PETITIONERS' RESPONSE TO QWEST CORPORATION'S OBJECTIONS TO
PETITIONERS' REPLY AND MOTION TO STRIKE - 2
PageData had specified in its Exhibits 109 and 122. Indeed, the Qwest exhibits conclusively
established that PageData and InterPage had paid $245 628.51 to Qwest for invoices from
11/96 through 8/99, not counting $14 926.80 that PageData paid for T-1 lines and frame
relay.The hearing examiner had stated that PageData had not substantiated its claim
regarding the level of payments but Qwest, following the hearing, conclusively documented
the payments claimed by PageData, and then some.
The foregoing payment history is absolutely relevant to this proceeding because the
hearing examiner considered the POTS lines (private service lines) and frame relay to be
unrelated to interconnection, based solely on Sheryl Fraser s statement that Qwest did not
consider them such. He completely ignored Mr. McNeal's testimony that the POTS lines
were used to transport traffic from outlying areas, a function also provided by the frame
relay. Mr. McNeal's testimony - that the private lines and the frame relay were used to
funnel traffic to his point of interconnection - was unrebutted. In any event, the hearing
examiner considered these to be wide area calling services for which Qwest could charge and
that resulted in their being excluded from reimbursement. The Mountain Communications
decision says otherwise. That is why all of these accounts are relevant and why it is
appropriate that a full refund be made with regard to payments made on them by InterPage
and PageData.
Qwest complains that Appendix A was prepared by Mr. McNeal and not signed by
his counsel of record. The objection is beside the point. It was fully incorporated by
reference into Petitioners ' Reply, as stated at page 3 thereof. Much of the information
referenced in Appendix A is contained in the record. Some is not. The Commission is
PETITIONERS' RESPONSE TO QWEST CORPORATION'S OBJECTIONS TO
PETITIONERS' REPLY AND MOTION TO STRIKE - 3
obviously able to separate the wheat from the chaff and determine the relevance of the points
made therein.
One further point is relevant, Qwest is currently taking the position in interconnection
negotiations, both in Idaho and Oregon, that paging carriers need not pay for transit traffic
unless Qwest furnishes the up-stream transit billing information. Petitioners believe that the
Commission can take notice of the attached Qwest Communications, which document this
position. Qwest has offered this term to Mr. Ryder and he has agreed to it. While Petitioners
continue to believe that Qwest may not charge anything for transit traffic, Qwest should, at
minimum, be deemed in this proceeding to be unable to charge for transit traffic during the
time frame relevant to this proceeding since Sheryl Fraser admitted that transit billing
information could not be produced and it obviously was not furnished to the Petitioners. In
other words, based on Qwest's current interpretation of the 1996 Act, transit traffic should
not have been charged for, which requires that the 24% credit previously granted by the
Commission be refunded to the Petitioners.
DATED this 9th day of July, 2004.
PETITIONERS' RESPONSE TO QWEST CORPORATION'S OBJECTIONS TO
PETITIONERS' REPLY AND MOTION TO STRIKE - 4
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 9th day of July, 2004, I caused to be served a true
and correct copy of the foregoing PETITIONER'RESPONSE TO QWEST
CORPORATION'S OBJECTIONS TO PETITIONERS' REPLY AND MOTION TO
STRIKE 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
DON HOWELL
Idaho Public Utilities Commission
4 7~ W ~t~~~ ashingtoli
BoIse, 83\
PETITIONERS' RESPONSE TO QWEST CORPORATION'S OBJECTIONS TO
PETITIONERS' REPLY AND MOTION TO STRIKE - 5
Amendment to the Connection Agreement
Between
Robert Ryder dba Radio Paging Service
and
Qwest Corporation
In the State of Idaho
This Amendment ("Amendment") is made and entered into by and between Robert
Ryder dba Radio Paging Service ("Radio Paging" or "Paging Provider") and Owest
Corporation f.a. U S WEST Communications, Inc. ("Qwesf').
RECITALS
WHEREAS , Radio Paging and Owest entered into a Connection Agreement for service
in the state of Idaho that was effective January 2, 2004 ("Agreemenf'); and
WHEREAS, Radio Paging and Owest desire to amend the Agreement by adding the
terms and conditions contained herein.
AGREEMENT
NOW THEREFORE, in consideration of the mutual terms, covenants and conditions
contained in this Amendment and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Amendment Terms.
This Amendment is made in order to modify the terms and conditions described
below:
Appendix A - Rates and CharQes, is modified to read as follows:
1. FACILITY CHARGES
Radio Paging shall be obligated to pay for the portion of the facilities used
to deliver Third Party Traffic as set forth below. The payment shall be
calculated by multiplying the specified rate by the Third Party Traffic
percentage. Twenty-four percent (240/0) of all traffic delivered by Owest to
Radio Paging under this Agreement shall be deemed Third Party Traffic.
(i)Type 1: Between the Serving Wire Center serving Paging
Provider s POC and the BOP, subject to Section 2.
Paging Provider shall be obligated to pay at the rates described in
Schedule 1 for the portion of the facilities used to deliver Third
Party Traffic. The payment shall be calculated by multiplying the
specified Schedule 1 rate by the percentage of traffic deemed
exempt under Section 1 of this Appendix A.
(A) Between the BOP and the end office where the DID numbers
reside, subject to Section 2., Paging Provider shall be
Amendment to CDS-O31106-0001
obligated to pay for 100 % of the mileage band rates only
pursuant to the appropriate Tariff.
(ii) Type 2: Subject to Section 2., Paging Provider shall be
obligated to pay at the rates described in Schedule 1 for the portion
of the facilities used to deliver Third Party Traffic. The payment shall
be calculated by multiplying the specified Schedule 1 rate by the
percentage of Third Party Traffic.
Paging Provider does not have to pay facility charges for Third Party
Traffic as specified in A above if Owest does not provide the originating
company s calling records to the Paging Provider's POCo A Category
per record fee of $.0014877 will be assessed by Owest to Paging
Provider for these records.
1000/0 of the Non recurring charges il)curred due to Radio Paging
relocation or equipment change will be paid.
Neither Party shall lose any of its rights from the original Agreement by entering into
this Amendment.
2. Effective Date.
This Amendment shall be deemed effective upon the Idaho Public Utilities
Commission s approval; however, the Parties may agree to implement the provisions
of this Amendment upon execution.
3. Amendments; Waivers
The provisions of this Amendment, including the provisions of this sentence, may not
be amended, modified or supplemented, and waivers or consents to departures from
the provisions of this Amendment may not be given without the written consent
thereto by both Parties' authorized representative. No waiver by any party of any
default, misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, will be deemed to extend to any prior or subsequent default
misrepresentation , or breach of warranty or covenant hereunder or affect in any way
any rights arising by virtue of any prior or subsequent such occurrence.
4. Entire Aareement
The Agreement as amended (including the documents referred to herein) constitutes
the full and entire understanding and agreement between the Parties with regard to
the subjects of this Amendment and supersedes any prior understandings,
agreements, amendments, or representations by or between the Parties, written or
oral, to the extent they relate in any way to the subjects of this Amendment.
The Parties intending to be legally bound have executed this Amendment as of the
dates set forth below, in multiple counterparts, each of which is deemed an original
but all of which shall constitute one and the same instrument.
Amendment to CDS-O31106-0001
Authorized Signature
#.i";:A /-. R Y,L).$'/...!,
Name Printed/Typed
// /S /cL.
Title
?;/cOat
Amendment to CDS-O31106-0001
Qwest Corporation
Authorized Signature
LT. Christensen
Name Printed/Typed
Director Interconnection Aqreements
Title
Date
1600 7th Ave, Room, 3007
Seattle WA 98191
Bryan Sanderson
Interconnection Negotiator
[phone]
F=ax: _(206)345.0225 ,
-mai1: besande~q",!est.com Qwe st~
Via Fax TO: 208-385-9599
July 6 , 2003
Jim Jones , Esq.
Jim Jones & Associates
1275 Shoreline Lane
Boise, 10 83702-6870
Re: Interconnection agreement between Radio Paging and Malheur Home
Telephone Company
Dear Jim:
I am responding to your fax dated July 1 , 2004 regarding amending the third sentence of
Section 1.A on page 43 by striking "Thirty-one point forty-five percent (31.450/0)" and
substituting "Zero percent (0.000/0)" in the Oregon interconnection agreement between
Malheur Home Telephone Company and Radio Paging. Qwest is not in agreement with this
minor change . The FCC has held on a number of occasions that ILECs may charge
paging companies for the portion of the facility that is used to terminate transit traffic on a
paging carrier s network. In your original letter requesting an interconnection agreement for
Radio Paging dated February 12, 2004 you refer to the recent decision by the U S Court of
Appeals for the D.C. Circuit in Mountain Communications v. Federal Communication
Commission eliminating charges for transit traffic. My reading of that decision does not
conform to your understanding. As a matter of fact, the Court did not make a decision on this
matter because Mountain dropped that portion of the petition after Owest counsel stated that
Qwest would provide Mountain with the information necessary to charge the originating
carrier.
In light of this position, Owest Product Management is currently reviewing the feasibility of
providing transiting records to the terminating paging carrier. That is why in the proposed
Malheur agreement, Section 1.B page 43, it states that Malheur will not charge for transiting
traffic unless it provides the originating records to Radio Paging. If the records become
available in the future Malheur intends to reimplement Section 1.A of the agreement and
charge Radio paging 31.450/0 of the facility for transiting traffic. Malheur will also charge a
record fee per record to recover its costs for providing these records. Malheur is willing to
forego charges for transit traffic for the time being, but reserves its rights to charge Radio
Paging for this traffic based on numerous rulings by the FCC and Owest's acknowledgement
before the circuit court, that it will provide transit records to the terminating paging carrier.
Please let me know how Radio Paging wants to proceed.
Q%)
36use220506
Proud Sponsor
Page 2
Sincerely,
~a~
~~'-'
Bryan Sanderson
Cc: Bill Batt
Jeff Nodland
Gilbert Wan