20050103Reply Brief of Appellants.pdf

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IN THE SUPREME COURt OF tHE STA;~~F IDAHO 0
2nO~ DEC 30 PM 2= 1+9
IN THE MATTER. OF THE JOINT
PETITION OF ROJJERTRYDER, d/b/a
RAIO PAGJNG$ERVICE, JOSEPHB.
MCNEAL, d//aPAGEDATA AN
INT)!RPAGE OF IDAHO,AN
TEL~CAR INC., FOR DECLARTORY
ORDER AN RECOVERY OF
OVERCHAGES FROM U.s. WWST
COMMCATIONS INC.,
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). )IDAHO PUBLIC UTILITIES COMMSSION,)
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ROBERT RYDER, d//a RAIO
PAGING SERVICE, et al.,
Petitioners/ Appellants/Cross Respondents,
vs.
Respondent on Appeal,
and
':l~Ä¥ST CORPOllTlON,
RespondentlRespóndent on Apppal/ross-
Appell:mt,
UTllI FUBLiC
Cm1/'1lSSIOH
SJlpremeCourt Docket No. 29,Ì7S;
IPUC Docket No, T-99-24
REPLY BRIF OF APPELLANTS
APPEAL FROM THE IDAHO PUBLIC UTILITIES COMMISSION, ...., ',... ,.;..
JI.JONES
.Jinn Jones & Associates
1275 Shoreline Lane
,"oise, ID 83702 .
Attorney for Petitioners/Appellants
WILLHMJ.BATT
Batf& Fishßl, LLP
P.O. Box 13,08
Boise, il 83701
Attorney for Qwest Corporation,
RespondentlResponi;cnt on Appeal
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DON HOWELL
Idaho Public Utiities Commission
472 West Washington
Boise, il 83702
Attorney For Idaho Public Utiities
Commission, Respondent on Appeal
II~ THE SUPREME COURT OF THE STATE OF IDAHO
IN THE MATTER OF THE JOINT
PETITION OF ROBERT RYDER, d/b/a
RAIO PAGING SERVICE, JOSEPH B.
MCNEAL, d//a P AGEDATA AN
INTERPAGE OF IDAHO, AN
TEL-CAR INC., FOR DECLARATORY
ORDER AN RECOVERY OF
OVERCHAGES FROM U.S. WEST
COMMUNICATIONS INC.,
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IDAHO PUBLIC UTILITIES COMMSSION,)
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ROBERT RYDER, d//a RAIO
PAGING SERVICE, et al.,
Petitioners/ Appellants/Cross Respondents,
vs.
Respondent on Appeal,
and
QWEST CORPORATION,
RespondentlRespondent on Appeal/Cross-
Appellant,
Supreme Court Docket No. 29175
IPUC Docket No. T-99-24
REPLY BRIF OF APPELLANTS
APPEAL FROM THE IDAHO PUBLIC UTILITIES COMMSSION
JI JONES
Jim Jones & Associates
1275 Shoreline Lane
Boise, ID 83702
Attorney for Petitioners/Appellants
WILHM J. BATT
Batt & Fisher, LLP
P.O. Box 1308
Boise, ID 83701
Attorney for Qwest Corporation,
RespondentlRespondent on Appeal
DON HOWELL
Idaho Public Utilties Commission
472 West Washington
Boise, ID 83702
Attorney For Idaho Public Utilties
Commission, Respondent on Appeal
TABLE OF CONTENTS
TABLE OF CASES AND AUTHORITIES.........................................................ii
i.
II.
II
IV,
v.
INTRODUCTION ........................... ...............,.........................................1
ADDITIONAL ISSUE ON APPEAL......................................................2
THE PAGERS' REPL y.........................................................................2
THE PAGERS' RESPONSE TO QWEST'S CROSS-APPEAL .............8
CONCLUSION ............ ..................................,...... ....................................14
CERTIFICATE OF SERVICE............................................................................ 15
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TABLE OF CASES
Page
Cases
F1eming v. Hathaway, 107 Idaho 157, 686 P.2d 837 (Ct. App. 1984).................8
Intern. Equip. Servo V. Pocatello Indus. Park, 107 Idaho 1116,
695 P.2d 1255 (1985) ..........................................................................................8
Mountain Communications, Inc. V. FCC, 355 F. 3d 644 (D.C. Cir. 2004)...........5, 7, 13
Pace V. Hymas, 111 Idaho 581, 726 P.2d 693 (1986) ........................................8
Statutes:
Idaho Code § 28-22-104 (1) ................................................................................7,8
Idaho Code § 61-624 ............................................................................................13
Agency Rules:
IDAPA 31.01.01.057.02.a. and b ........................................................................8
IPUC Rule 1 06............,........................,................................................................ 7
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1. INTRODUCTION
This brief is submitted by the Petitioners and Appellants ("Pagers") in reply to the
response briefs of Qwest Corporation ("Qwest") and the Idaho Public Utilities Commssion
("IPUC") and in response to the issues raised by Qwest in its cross-appeaL. This brief will
first address certain issues relevant to the reply and then respond to the issues raised in the
cross-appeaL. This brief does not contain additional argument on behalf of Tel-Car, Inc.
because Qwest and Tel-Car have entered into a settlement, which awaits approval by the
Bankptcy Cour. The IPUC has ordered the remaining paries to mediate but it is not likely
that meaningful mediation wil occur before the end of this year. The Pagers have fied a
motion to augment the agency record to include that order (Order No. 29666) and a copy is
included herein as Appendix i.
Durng the course of the briefing, the IPUC has grappled with the issue of how the
reimbursement owing to the Pagers should be handled. That is, whether Qwest has the
option to make reimbursement solely through a biling credit, whether reimbursement should
be parially in cash and parally in biling credit, whether the credit option should be
confined to the recovery period (1111/96 - 5/13/99 for Mr. Ryder and 1111196 - 9/10/99 for
Mr. McNeal), and, if the latter, whether either of the two Pagers owed aaything to Qwest at
the end of their respective recovery period.
In their initial brief, the Pagers pointed out that the IPUC should have required a full
cash refund to the Pagers, instead of giving Qwest the option of either granting a refund or a
billing credit, because Qwest had not sought affirmative relief in the proceeding. See, Brief
of Appellants, p. 36. It appeared that the IPUC had addressed the matter in its Order No.
29555, requiring Qwest to make a cash refund of the net amounts owing the Pagers as of the
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end of their respective recovery period, but subsequent orders have somewhat muddied the
waters. In its Order No. 29666, the IPUC is essentially inviting an evidentiary discussion in
order to resolve the matter. That is, to determne how much of the respective awards might
be subject to a billing credit and how much should be made by way of a cash refund. Qwest
has taken the position that it is entitled to apply the awards fully as a credit, regardless of the
recovery period. The Pagers have taken the position that they are entitled to a full cash
refund because their accounts with Qwest were current at the end of their respective recovery
periods. The IPUC has taken somewhat of a middle ground. Thus, during the briefing
period, the partes have been continuing to argue and litigate the issue of cash refud vs.
biling credit and wil likely to continue doing so unless and until this Cour orders otherwise.
Although the Pagers have pointed out in their initial brief that Qwest failed to seek
affrmative relief and was therefore not entitled to any, it may be appropriate to more fully
focus upon that issue since it appears that it is critical to resolution of the appeaL. Thus, the
Pagers are characterizing this issue as an additional issue on cross-appeal in order to get to
the nub of the issue of refund VS. credit.
II. ADDITIONAL ISSUE ON CROSS-APPEAL
Whether Qwest is entitled to a biling credit since it failed to plead or prove an
affirmative defense of set-off?
II THE PAGERS' REPLY
The main dispute between and among the parties relates to the question of whether
the IPUC properly excluded charges assessed by Qwest and paid by PageData and InterPage
of Idaho for lines utilized by those McNeal entities to fuel traffic from outlying areas to
their paging termnal in Boise. Mr. McNeal testified that both PageData and InterPage of
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Idaho used the leased lines and POTS lines to bring paging traffc from Idaho Falls, Twin
Falls, Pocatello, Burley, and other outlying areas within the LATA, to the Boise pagig
termnal from which the calls were then transported to the paging customers. The IPUC and
Qwest both contend that a pager is required to pay for POTS lines and leased lines even if
they are used to transport traffc to the pager's point of interconnection at the paging
terminaL. The Pagers argue that it is Qwests responsibility to get the traffic to the point of
interconnection and to do so free of charge to the pager.
In its response brief, the IPUC stated the basis for its decision to exclude
reimbursement to Mr. McNeal for the POTS lines and leased lines, as follows:
Based upon the TSR Order, Qwest witness Sheryl Fraser argued that it was
reasonable for Qwest to exclude non-paging facilities from the calculation of
the refuds.
IPUC Brief, p. 13. As stated at pages 26-7 of that brief, the IPUC "found that it was not
appropriate to provide refunds to the Pagers for those Qwest facilities that were on the
Pagers' side of their points of interconnection (i.e., operating as part of the Pagers'
networks)." The IPUC had the impression that the POTS lines and leased lines, which
funneled the traffc to the point of interconnection at the Boise pagig termnal, were on the
Pager's (Mr. McNeal's) side of the system and the Pager's responsibility, solely because
Qwest did not provide the single point of interconnection that it was obligated to provide
under the Telecommunications Act of 1996 ("Act"). See, Brief of Appellant's, pp. 18-22.
The IPUC is mistaken as to whose responsibility it is to provision facilities to a pager's
terminaL.As a matter of law, Qwest had an obligation to furnish a single point of
interconnection within the LATA to each of the Pagers and to car traffc to that point of
interconnection, free of charge.Because Qwest failed to carr out its responsibility to
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provide Mr. McNeal with a single point of interconnection, he found himself in a position
where he had to use leased lines and POTS lines to collect the calls made to his customers
from various points in the LATA and then funnel them to his paging terminal in Boise.
However, just because Mr. McNeal did not have a formal Qwest-designated point of
interconnection in Boise, does not mean that Qwest gets out of its obligation to transport the
traffc to the defacto point of interconnection in Boise, free of charge. Indeed, even at the
time of the hearing in this matter, Qwests witness, Sheryl Fraser, emphatically stated that
Qwest would not provide a single point of interconnection for any Type One (one-way)
pager, despite what the law required.
The POTS lines and leased lines were not excluded based upon testimony that they
were not par of Mr. McNeal's system for bringing traffc to his point of interconnection in
Boise. Rather, they were excluded based upon Sheryl Fraser's interpretation of the TSR
Order, which interpretation was adopted by the IPUC. Both were wrong, as a matter ofIaw.
The only testimony regarding the configuration of Mr. McNeal's system was from
Mr. McNeaL. Sheryl Fraser did not know how the system was configured. She submitted no
testimony on the issue.She did not contradict Mr. McNeal's testimony. Mr. McNeal
testified that the lines represented by the accounts in his exhibits, Petitioners' Exhibits 109
and 122, were used solely for the purose of transporting paging traffc to his paging
termnal in Boise. He testified that these accounts did not include his business accounts. His
testimony was uncontradicted and unrebutted. Neither Qwest nor the IPUC has contended
otherwise. The accounts represented on Petitioners' Exhibits 109 and 122 are exactly the
same accounts that Qwest documented in its itemization and comparison of accounts, which
is attached as Appendix II to the opening Brief of Appellants. See, specifically the Table at
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R., Vol. II, p. 375, a copy of which is attached hereto as Appendix II. Although the IPUC has
belittled Mr. McNeal's evidence regarding the amounts paid on these accounts by PageData
and InterPage of Idaho (See, IPUC Brief, p. 13), Qwest has documented that the two McNeal
businesses actually paid about $5,000 more during the relevant time frame than Mr.
McNeal's exhibits showed.Mr. McNeal had calculated payments by PageData and
InterPage at $240,756.03 from Januar of 1996 through September of 1999.Qwest
determined that the payments were actually $245,628.51 from November of 1996 through
August of 1999. In its calculations, Qwest did not include $18,032.50 for frame relay, T-1
lines, and a number of other items to which Qwest has objected. The lions share of Qwests
calculations relate to accounts that Mr. McNeal testified were used solely to transport traffic
to his Boise paging termnaL. See, Appendix II. That is, $207,847.93 was shown by Qwest to
have been paid by Mr. McNeal's entities for accounts designated by Qwest as "DID
Service". Id.
The contention by the IPUC and Qwest that Qwest does not have to reimburse for
lines that were undisputed1y used to transport paging traffc from outlying areas to Mr.
McNeal's paging terminal is wrong, as a matter of law. Qwest was responsible for bringing
the traffc to the paging termnal, regardless of the means for getting it there, under the
applicable law, as interpreted by the Federal Communications Commssion and the Federal
Circuit Courts of Appeal, partcularly in Mountain Communications, Inc. v. FCC, 355 F. 3d
644 (D.C. Cir.2004). See, Brief of Appellants, pp. 18-20.
At times, the IPUC has indicated it did not know the purose served by the POTS
lines and leased lines. For example, the IPUC contends that Mr. McNeal did not separate his
paging payments from non-paging charges. IPUC Brief, p. 14. To the contrary, Mr. McNeal
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testified that all of the accounts represented in Petitioners' Exhibits 109 and 122 were for
lines used to transport his paging traffc to his Boise paging termnaL. The IPUC essentially
recognized this to be the case at page 15 of its brief, where it found that PageData had
configued its paging network in a manner that constituted wide area calling, and at pages
26-27 of its brief, where it acknowledged that Mr. McNeal's system consisted of a number of
what the IPUC called "points of interconnection". What the IPUC did not acknowledge is
that the multiple "points of interconnection" were on Qwests side of the system and Qwests
responsibility under the law, rather than Mr. McNeal's. All of those alleged "points of
interconnection" carred Qwest-originated traffc to the actual point of interconnection, Mr.
McNeal's Boise paging termnaL. There is not one item of evidence in the record that
indicates a paging termnal was located at any of the multiple "points of interconnection" in
Idaho Falls, Twin Falls, Pocatello, or anywhere else.
As the IPUC points out, it initially denied reimbursement for the lines that carred
traffc from the outlying areas to the Boise terminal, characterizing this as a "wide area
calling arangement". IPUC Brief, p. 15, item (b). The IPUC obviously knew that these
lines were being used for "paging" services, i.e., to carr Qwest-origiated traffc to Mr.
McNeal's Boise paging termnaL. The IPUC canot contend that it does not know the lines
represented by the accounts shown in Appendix II were not used for pagig, i.e., to car the
Qwest-originated traffc to the Boise paging termnaL.
The long and the short of it is that Mr. McNeal is entitled to reimbursement for the
entire $245,628.51, which Qwest has documented that PageData and InterPage ofIdaho paid
for DID Service, leased lines, and POTS lines during the relevant time frame. Appendix II.
The uncontradicted testimony is that these lines were used to transport paging traffc to Mr.
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McNeal's Boise paging terminaL. The lines were on Qwests side of Mr. McNeal's point of
interconnection at Boise and, therefore, Qwests responsibility. The IPUC first claimed that
these outlying lines were wide area calling arrangements and Mr. McNeal's responsibility.
However, the Mountain Communications decision made short work of that contention. Now,
the IPUC and Qwest claim that the lines are on the pager's side of the point of
interconnection, rather than on Qwests side, but that interpretation is wrong as a matter of
law and results from a misreading of the Mountain Communications decision. In an almost
identical fact situation, the D.C. Circuit held that Qwest was not entitled to charge the paging
company for calls that originated outside of the local calling area where its point of
interconnection was located. See, Brief of Appellants, pp. 17-20.
On another matter, the IPUC contends that the interest rate in its Rule 106 should be
applied to the awards it made to the Pagers, rather than the 12% interest rate in I.C. § 28-22-
104 (1). However, Rule 106 does not apply to telecommunication carers. Qwest and the
Pagers are such carrers, who are not subject to State regulation but, rather, are subject to
federal law. Rule 106 applies to telephone customers, whose service by Qwest is subject to
State regulation. Furer, the rule deals with utility deposits and there are no deposits in this
case. On the other hand, 1.C. § 28-22-104 (1) applies, "When there is no express contract in
wrting fixing a different rate of interest..." that is the situation here. Qwest extracted illegal
payments from the Pagers on a monthly basis, beginning on November 1, 1996, and has
never made restitution. Qwest has had its il-gotten gains for eight years. The Pagers have
neither had the money not interest on the money. By failing to require Qwest to make a cash
refund of its il-gotten money, the IPUC has essentially rewarded Qwest for its misconduct
and kept the Pagers from recovering back the purloined monies. There is no specific rate of
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interest that applies, so the 12% provided for in 1.C. § 28-22-104 (1) is the appropriate
interest rate to be applied to the reimbursement owing to the Pagers.
IV. THE PAGERS' RESPONSE TO QWEST'S CROSS-APPEAL
When this proceeding was initiated, the Pagers alleged that Qwest had charged them
for facilities and services that were required to be provided without charge under federal law.
The Pagers sought "recovery of amounts paid" commencing in September of 1996. R., Vol.
1, p. 5. At no time did Qwest fie an answer asserting any affrmative defenses. Set-off is an
affrmative defense which must be pleaded and proven by the person asserting it. According
to IPUC Rule 57.02.a and b, afffrmative defenses must be separately stated in the answer and
failure to do so generally prohibits the par wishing to rely on the affrmative defense from
asserting it in the proceeding.IDAPA 31.01.G.057.02.a. and b.Not only must an
affrmative defense be asserted in the answer, it must be proven by the part assertng it. See,
Pace v. Hymas, 111 Idaho 581, 586, 726 P.2d 693 (1986) ("where the defense to an action is
of an affrmative natue, the defendant becomes the proponent, and has the burden to bear.")
There is no question but that the option granted by the IPUC to Qwest to issue billing
credits, in lieu of making cash refunds of the improper charges, amounted to a set-off.
According to this Court:
Setoff is an equitable doctrne. 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 § 7 (1965).
Intern. Equip. Servo V. Pocatello Indus. Park, 107 Idaho 1116, 1119, 695 P.2d 1255 (1985).
Set-off is an affrmative defense and must be either pleaded as such or pleaded as a
counterclaim. Fleming V. Hathaway, 107 Idaho 157, 160-1,686 P.2d 837 (Ct. App. 1984).
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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 Pagers. While the hearing examier
required fastidious proof from the Pagers 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 carr the burden 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 litigated
at the hearng. As a matter of fact, it is curently being litigated in on-going proceedings
before theIPUC, as indicated in Order No. 29666.
When the Pagers 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 IPUC. With regard to Radio Paging and PageData, the relevant timeframe
ended at the time their respective interconnection agreements were approved by the IPUC.
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 applied the amounts it claims to be
owed pursuant to the interconnection agreements of Radio Paging and PágeData against the
amounts determned to be owig to them for overcharges. In its latest calculation entitled
"Qwest Corporation's Calculations Pursuant to Order No. 29603", dated October 15, 2004
("Qwest Calculations"), Qwest claims at page 9 that Mr. McNeal actually owes Qwest in
excess of $200,000 and that it only owes Radio Paging approximately $20,000. This is
because Qwest has reduced their respective awards by crediting them against charges it
contends are owing under the interconnection agreements. If it is allowed to unilaterally
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determine how much it believes the Pagers owe under the interconnection agreements and to
unilaterally credit their awards to charges that extend beyond the recovery period, Qwest will
not have had to prove its entitlement to a set-off and will be the sole judge of how much the
charges should be for periods both before and after approval of the interconnection
agreement. In its Order No. 29666, the IPUC stated that any set-off or billing credits had to
end as of the date each Pager entered into his interconnection agreement. Order No. 29666,
p.3.
To see how skewed the result would be if Qwest were to have its way, let us take the
example of Radio Paging. As set forth in Petitioners' Exhibit No. i 03, Radio Paging paid a
steady $1,811.67 per month during the entire period in question (November 1, 1996 to May
13, 1999). Early on in this proceeding, the IPUC ordered that 76% of each monthly payment
be refuded or credited back to Radio Paging. Upon remand early this year, the IPUC
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 IPUC 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 durng the relevant
time frame. If 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 May 13, 1999 under the Qwest-
Radio Pagig interconnection agreement. However, in calculating the amount of credit that
Qwest claims Radio Paging is entitled to, i.e., about $20,000, Qwest has obviously chosen to
set off the transit traffic charges accumulated under the interconnection agreement against the
amount found to be owing to Radio Paging. See, Qwest Calculations, p. 9.In other words,
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Qwest unilaterally claims a bogus set-off for a period that is entirely after May 13, 1999.
Radio Paging never had the opportnity to submit proof to the IPUC 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 Pagers owe something to Qwest for services provided either before or after they
entered into their interconnection agreements, it is a matter that should be determined in a
separate proceeding where the paries are on notice of what the issues are and have a fair
opportnity to present their evidence and defenses. There has never been such an opportity
for the Pagers. By allowing Qwest to claim a set-off, which it neither pleaded nor proved, the
IPUC has allowed this matter to descend into a quagmre. Qwest has not had to pay one thin
dime to any of the Pagers and apparently 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 postue. 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
deterning whether there is a positive or negative balance? What about the
biling 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 Commssion ordered Cross-Appellant to make refuds to Cross-
Respondents, rather than to provide biling credits, whether the Commssion
erred in making such decision and in failing to provide a clear order to
determne how such refudslbiling credits or combinations thereof would be
determined.
The IPUC has attempted to resolve the quagmre in its Order No. 29666. First, the
IPUC has found Qwests Calculation to be "non-responsive" to the requirements of Order
No. 29603. ¡d., p. 3. Second, the IPUC has indicated that any set-off has to be confined to
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the Pagers' respective recovery period. Both Mr. McNeal and Mr. Ryder have stated, under
oath, that they are entitled to a full cash refund of their respective awards because they both
had a credit balance with Qwest at the end of their respective recovery period. See, Affdavit
of Robert Ryder and Affdavit of Joseph B. McNeal, both fied with the IPUC on August 17,
2004 and subsequently augmented into the Agency Record. It is likely that Qwest will tr to
present some sort of evidence to the IPUC at some point, contending that either or both had
no credit balance at the time. However, such evidence appears to be lacking in the present
record. Therefore, it would be appropriate to require Qwest to immediately refund the
amounts found by the IPUC to be owing to these two Pagers in this proceeding and, if Qwest
believes it is entitled to some recovery for periods outside of the relevant time frame, to
require it to pursue the same in another proceeding. The amounts determined to be owing, as
set forth in Order No. 29555 are $57,467 to Radio Paging and $101,950 owing to PageData.
The PageData award was subsequently reduced to $96,943 in Order No. 29603.
In its cross-appeal, Qwest complains that the IPUC "erred in abandoning its previous
rulings regarding billing credits vs. cash reimbursements". Qwest Brief, p. 22. However,
even though the IPUC has gone back and forth on the question of cash reimbursement vs.
billing credits, its previous rulings have not held as Qwest contends. No ruling by the IPUC,
prior to Order No. 29666, gave Qwest specific authority to apply biling credits after the
respective period of recovery for the Pagers. Qwest may have read such authoriation into
the previous orders, but it is not there.
Qwest contends that the IPUC acted arbitrarly and capriciously when it ordered cash
refunds in Order No. 29603. Qwest Brief, pp. 28-29. Again, the IPUC never specifically
ruled that Qwest could apply the awards made against it to biling credits that extended after
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the Pagers' respective period of recovery. And, even if the IPUC subsequently determned
that it was incorrect, the IPUC has the authority, at any time, to rescind or change any of its
orders./. C. § 61-624. And, doesn't it make sense that if the Pagers paid the ilegal charges
in cash, they should receive it back in cash?
Qwest does state that there is no evidence in the record to show what the Pagers'
account balances with Qwest were at any paricular point in time. Qwest Brief p. 26. Qwest
contends:
Because there was no evidence presented regarding overall account balances
durg the recovery period or even at the time of the hearg, there is no
evidence now from which the Commission or the cour could determe
whether credits ordered exceed' amounts owed.'
Id. Qwest acknowledges that it presented no evidence to determine whether there might
have been a credit or debit balance with regard to either Pagers' account with Qwest at the
end of their respective recovery period. However, the Affdavits of Messrs. McNeal and
Ryder, which have been augmented into the Agency Record, disclose that both had a credit
balance with Qwest at the end of their respective recovery period. Thus, both are entitled to
a full and immediate cash refund.
Qwest also complains that the IPUC acted inappropriately in requiring Qwest to
reimburse charges levied against the Pagers for transit traffc. However, the IPUC ruling in
this regard is entirely consistent with the Mountain Communications decision and in keeping
with trade practices, as evidenced by the "rules of the road", the standard practice of
chargig the cost of calls to the network of the par initiating the call.See, Brief of
Appellants, p. 30. The IPUC has provided substantial justification for its directive to refud
the transit traffc charges in pages 40-42 of its brief. As mentioned at page 42, "Qwests
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recent interconnection agreement with Radio Paging" contains a provision whereby Radio
Paging does not have to pay for transit traffic unless and until Qwest provides the up-stream
billing information, i.e., the billing information from the carer on whose system the call
origiated.
And, as pointed out at pages 31-34 of the Brief of Appellants, Qwest was not entitled
to charge for the transit traffc in this case, even if it had the general authority to do so. First,
it did not raise the transit traffc issue as a set-off. Second, the evidence presented by Qwest
was wholly inadequate to establish a 24% transit factor. Thus, for a variety of reasons, the
Pagers are entitled to recover the transit traffc charges.
V. CONCLUSION
Based on the on-going proceedings before the IPUC, the Pagers hereby modify their
request for relief and respectfully request that the Court remand the case to the IPUC with the
following instrctions:
(a)That, in accordance with the FCC and Circuit cour decisions holding that a
LEC must deliver traffc of a Type One pager to a single point of interconnection within the
LATA (here the Boise LATA), the IPUC require that Qwest make a full refund of the
amounts that PageData and InterPage of Idaho paid to Qwest for transport of all traffc to the
Boise paging termnal from November 1, 1996, to September 10,1999.
(b)That the IPUC require Qwest to make a full refund of the amounts that Mr.
Ryder paid from November 1, 1996, to May 13, 1999.
(c)That the IPUC calculate interest at the rate of 12% per annum on the refunds
owig from the date each payment was made and require Qwest to pay the same.
- 14 -
(d)That the IPUC reqUlre Qwest to make an immediate cash refund of the
amounts found by the IPUC to be owing Mr. McNeal and Mr. Ryder ($96,943 and $57,467,
respectively), to be applied as credits to the above awards.
(e)That all refunds be made, in cash.
RESPECTFULLY SUBMITTED this 29th day of December, 2004."~ \0\~~_.
JIMJONES
L/
/,,i
I
i''-
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 29th day of December, 2004, I caused to be
served two tre and correct copies of the foregoing REPLY BRIF by depositing the same in
the United States mail, postage prepaid, in envelopes address to the following:
WILIA 1. BATT
Marshall, Batt & Fisher
P.O. Box 1308
Boise, ID 83701
DON HOWELL
Deputy Attorney General
Idaho Public Utilities Commssion
472 West Washington
Boise, ~ 83702 ~0\\ -~~~
JI/JONES / \/ iI ,i :\ )~'/'..;/
- 15 -
OIfco of the Secreta
Servic~ Date
December 21,2004
BEFORE Tt-í ~: IDAHO PUBLIC iJTILITIES COM1VnSSION
ili
ROBERT RYDER DBA RAIO PAGING
SERVICE, JOSEPH B. McNEAL DBA
P AGEDATA A.l' ThìTERP AGE OF IDAHO,
AND TEL-CAR INC.
)
)
)
)
)
)
)
)
)
)
)
Respondent on AppealCross-Respondent, )
)
)
)
)
)
RespondentIespondent on Appeal/Cross- )Appellant. )
)
Petitioners/ Appellants/Cross-Respondents,
v.
IDAHO PUBLIC UTITIES COMMSSION,
and
QWEST CORPORATION,
SUPREME COURT
DOCKET NO. 29175
IPUC CASE NO. USW-T-99-24
ORDER NO. 29666
On October 5, 2004, the Commssion issued its fina Reconsideration Order No.
29603 followig the Idaho Supreme Cour's temporar remand of ths matter to the Commssion.
In Order No. 29603, the Commssion determed that the Petitioners (hereinafer referred to as
"the Pagers") were entitled to additiona refuds from Qwest Corporation. As the Commssion
observed in its Order, it appeared that based upon Qwests earlier calculation;, the refuds owed
the Pagers may exceed any arearages they may owe Qwest. , Consequently, the Commssion
directed "Qwest to provide up-to-date calculations to conf= ¡whether J the refuds apportoned
to each Pager. . . exceed the amounts the Pagers owe Qwest." Order No. 29603 at 19 (emphais
added). The Commssion contiued that if the "Pagers' refuds exceed the amounts they owe
Qwest, then Qwest shal issue cash reimbursements for the balances to PageData Radio Paging
and Tel-Car's estate¡,J Id.
On October 15, 2004, Qwest Corporation submitted its "calculations" in response to
Order No. 29603. Rather than provide detaied calculations, Qwest asserted that both PageData
and Radio Paging owe Qwest in excess of $200,000 and $20,000, respectively. Qwest
ORDER ~O. 29666 1 APPENDIX I
Calculations at 9. Qwest also posed several questions and requested that the Commission "look
at this issue (of calculating refudsJ once more." ¡d. at 10.
PROCEDURA BACKGROÙND
Afer Qwest filed its calculations, the Pagers filed a Motion to Stre Qwest s
Calculations on November 12, 2004. The Pagers assert that Qwests calculations "are in
defiance of the Commission's order" because Qwest has not issued cash refuds as directed by
the Conuission. Motion to Strike at 2. The Pagers characterized Qwest s calculations as a
means to "re-argue its case and to attempt to assess bogus charges" agaist the Pagers. ¡d. The
Pagers argue that if they owe something to Qwest for services provided either before or after
their interconnection agreements with Qwest, the Pagers should be allowed an opportunity to
refute any such claims. The Pagers conclude that the "only way to get out of the quagmire and to
provide the clarty desired by all pares" is to strke Qwests calculations, order Qwest to pay
cash reimbursements in the amounts designated by the Conuission, and "to provide that any
claims Qwest may have against the Pagers be determined in other proceedings." Id. at 5-6.
On December 10, 2004, the banptcy estate of Tel-Car and Qwest filed a
"Stipulation for Settlement and Dismissal" of Tel-Car's claims. Under their Settlement, Qwest
agreed to pay Tel-Car a total of $65,000 in full and final settlement, and in return shall receive a
credit of $20,000 in settlement for all clais against Tel-Car including pre-petition and post-
petition claims. Once the settlement is approved by the Banptcy Court, Qwest shall remit the
net sum of $45,000 to Tel-Car's Trustee and the parties will stipulate to the dismissal of Tel-
Car's appeaL. Stipulation at ~ 4.
On December 15, 2004, the Pagers fied a Motion to Compel with the Commission.
The Pagers ask the Conuission to order Qwest to immediately pay the sum,of $57,467 to Radio
Paging and $96,943 to P ageD ata.
Commission in Order No. 29603.
On December 16, 2004, the Pagers filed a Motion for Extension with the Idaho
These sums are the refud amounts calculated by the
Supreme Court. The Pagers requested that the Cour approve an extension of time to file their
Reply/Cross Respondents Brief until December 30, 2004. In his affidavit accompanying the
Motion, counsel for the Pagers noted that they have requested the Commssion to address the
refund issue once again. The Pagers suggested that a short extension'may allow the remaining
ORDER NO. 29666 2
paries to the appeal (pageData and Radio Paging) to settle their dispute. The Cour granted the
Pagers' Motion for Extension on the day it was filed.
DISCUSSION
Contrar to our directions in Order No. 29603, Qwests calculations submitted on
October 15 did not explicitly "confimm" the Commission's calculation of refuds.Instead,
Qwest asserted PageData owes Qwest in excess of $200,000 and Radio Paging owes Qwest
approximately $20,000. Qwest argued its Exhibits 201 and 202 support its belief that the two
Pagers owe Qwest amounts that exceed "the credits that would later be granted."Qwest
Calculations at 9. Qwest did not provide detailed calculations regarding any arearages tliat the
Pagers owe Qwest. Thus, we find Qwest s "calculations" to be non-responsive to our directive
in Order No. 29603.We are unable to fully address Qwests argument that the Pagers'
arearages exceed the refunds owed to the Pagers.
As set out above, both Qwest and the two remammg Pagers request that the
Commission once again take-up the issue of refunds. In an attempt to resolve this question, we
shall layout some parameters for the paries and direct that they meet once again to exchange
data and attempt to settle their differences.
First, Qwest asks in its calculations at what point in time should "debits and credits"
be compared to detemmine whether the Pagers owed Qwest. Consistent with our previous Orders,
the Commission believes that refuds and arearages should generally pertai to the undisputed
refud periods identified for PageData and Radio Pagig. The refud period for PageData is
November i, 1996 to September 10, 1999, and November 1, 1996 to May 13, 1999 for Radio
Paging. The end of the refund periods in 1999 corresponds to the dates that the CommissIon
approved the respective interconnection agreements between the paries.
The Commission has consistently maitaied thoughout ths proceeding that the
refunds and any arrearages should end on the effective dates of the interconnection agreements
set out above. In the Liability Phase of this case, the Pagers sought to extend the refund periods
past the effective dates of their respective intercolliection agreements. In Order No. 28626, the
Commission found that such a request was inappropriate for several reasons. First, we found
that the requested expansion exceeded the scope of the Pagers' Complaint. Order No. 28626 at
4.In addition, the Commission observed that each interconnection agreement contained a
provision addressing dispute resolution. Order No. 28626 at 5. The Commission found that
ORDER NO. 29666 ,~
neither PageData nor Radio Paging had attempted to exercise their opticns under these dispute
resolution provisions. Consequently, the Commission concluded that it was "much too late for
the Pagers to expand t.!¡e scope of the refud period to include their interconnection agreements."
Id.
For its part, Qwest also objected to expansion of the refund periods to include the
interconnection agreements. Qwest acknowledged that the interconnection agreements have
their own dispute resolution mechanisms and it asserted that the Commission has no "jurisdiction
over those matters (even) if it wanted to." R. at 178. Qwest conceded that "(c)haIges under the
interconnection agreements are not at issue in this proceeding." Id. Thus, it is clear that refunds
and any arearages arsing after the effective dates of the interconnection agreements are beyond
the scope this proceeding.
Qwest next asks what services should be included in detennining whether the Pagers
have a positive or negative balance. Qwest did not elaborate further. Without addressing the
merits of which services may be included in the alleged arearages, we believe that Qwest should
identify all arrearages owed by the Pagers by type of service. Qwest should provide detailed
calculations pertaining to what services are the subjects of any claimed arearages. Qwest should
also restate the data contained in the Table on page 9 of its calculations if such infonnation is
relevant to the refund issue. 1
We order the parties to meet with our counsel in another settlement conference to
address the issues of refunds and arearages. Prior to the expedited settlement conference, Qwest
should provide the Pagers and the Commission's counsel with detailed evidence regarding
paging and non-paging arearages up to the effective dates on the interconnection agreements.
For both paging and non-paging services, Qwest should identify with particúlarty the types of
services in arears. The amounts allegedly owed by PageData and by InterPage shall also be
separately identified.
To facilitate settlement, the Commission directs that paries' representatives
attending the meeting have authority to settle these disputes or that such individuals participate in
, the settlement conference via teleconference.
\ Qwest's question about "reversing" the billng credits should be addressed by the parties after they have examined
Qwest s data.
ORDER NO. 29666 4
ORDER
IT is HEREBY ORDERED that Qwest submit new calculations showing debits and
credits (e.g., refuds and arearages) as set out in greater detail above.
IT is FURTHER ORDERED that the paries meet to exchange refund information
and attempt to settle ths matter. Each par shall be represented by persons with authority to
authorize settlement of the dispute either in person or via teleconference. Counsel for Qwest and
the Pagers shall contact Deputy Attorney General Howell to arrange a mutually agreed meeting
time as soon as possible.
IT is FURTHER ORDERED that the Commssion Secretary shall serve this Order
via electronic mail or facsimile to expedite the service of ths Order.
DO:NE by Order of the Idaho Public Utilities Commission at Boise, Idaho ths ~I sf
day of December 2004.
~ J(~/J-
MARSHA H. SMITH, COMMISSIO"N"ER
JJ !Ur~ ~ri/~
DENNIS S. HA'JSEN, COMMISSI01''ER
ATTEST:
~u rr,Æ
J D. Jewell
Co SSlon Secretar
bLs/O, USViT9924 db
ORDER NO, 29666 5
~.. .'l¡ ""c"\~-)TI,:"X:;kJ~;;¡;t~';'A~~~~~~3-,-,,;.,1.~"."'",~~ss_,':iJr~:-~-'.j;.;ld-~~-!!';/~.;~,;¡-;~'ó'i:Zi#Â
PAGE CATA Pâymer.t Ccmpar~ Qwest vs PageData Fig,
Idaho Only
;
srirase
Praprie
Qwest Payments for :nvoicas 11-96 thru 8.99 Itemized ' !:,
Page Data: Payments for Invoicas 1-96 thru 9-99 i I
'Ii,
i I I I
DID Service
?mt per PageData by Pmt per Qwe~t by PageCa~ iota! Sur:mary +C.wes! ï::ta! Summa;y ..
A~un.t Number A~unt Account SubA~unt SubAccount
20a R,51-0454 454 .- .87,389.76 SO.CO $87,389.76
iotal 208 111~177a ' 87,569.3:3 '79,419.71
208234-3800 I 208 111-1770 .5,729.22 .-
2GS 788-6800 ! 208 111-1770 .1,674.00 .1,596.43
Total 208 736-5400 /208 i 11-1770 '8,946.79 .1,242.53
TotalZOa .324-1950/208 111-1770 ,3,415.86 .607.76
Tatai 208 677-8000 /208 111-1770 ,6,159.00 '1,239.84
Total 208 226-3040 I 208 111-1770 ,3,536.50 '1,057.95
Tcta! 208 587-0500/208 i 1 1-1770 ,7,322.43 '2,639.42
208684-9000 1208 j11~1770 .8,414.45 ,.
. Tcral 208 359-6900/208 1J1.177a .6,520.19 '2,266.69
208893-910.0/20811.1.1770 .11,946.81 '3,090.14
rctal 208 525-3000/208 111-1770 .6,206.30 '2,147.21
Tctal SummarylSub 208 i 11-1770 $157.476.10 $95,307.68
Total 20S 642-8000 .a,372.n .8,912.34
Total 20S 373-9000 ' 15.12S.37 '16,238.15
i otal DID Payments / Adjustments .180,641.48 '207.847.93
I I I I I
Private Line Accounts (Leased Lines)
PageData Total Summary'"Qwest Total Summary -+
Accunt Number Pmt per PageData Pmt per Qwest SubAccurrt SubAcc:unt
208 R5s.Z313 312 .-..
iota1208 111-1769 .6.303.00 '12,162.94 '
Tota! 208 232-7709/L 208 111-1769 '1,712.04 '2,963.44
Total 208 232-7722l208 1'1-1769 "1,787:60 '1,079.43
Tota 208 886-5~521L 208 111-1769 '- . . 2.127.21
Total 208 888-S156/L 20811 1.1769 '2,759.96 '1,646.76
Tota Summary/Sub 208111-1769 :51-2,56Z.60 $19,979.78
Tota Private Line (Leased Lines)
PmtlAdj .12,582.60 '19,979.76 '
I I I I I
tjusiness Lines (POTS)
PageData Tota! Summary -+Qwest Tota Summary +
Accunt Number Pmt per ?ageOata Pmt per Qwest SubAccunt SubAcc:unt
Total206 111-1771 .12.264.14 '10,314.23
Tota 206 733-9450/L 208 111-1771 '3,037.52 ,614.04
TotaZOa 23341284/L 208 111.1771 .6,453.73 .596.64
208 864-365/L 208 111-177'.4,442.41 .-
Total Summary/Sub 208111-1771 $16,197.30 $11,524.91
Tota 206 884-8822 .2,984.43 .2,049.73
Tota 208 522-7386 .337.22 .545.90
Tota POTS Payments I Adjustments '29.519.45 '14,120.54
,I I i I,
Other Accounts not on Qwest Itemization of Payments
PageData Total Summary..awes: Tota Summary ..
Accunt Number Pmt per PageData Pmt per QWest SubAct:unt SubAccDunt
208336-4203 .9.344.57 '1,991.40
208356.5271 .1,224.53 ' ,1.688.86
T-1 Unes
208347.8990-8022 .1,635,37 no info
208 375-5027-7998 .- 606.67 no info
208 375-5023-8008 .875.16 no info
Ti Lie Installation Fee .976.86 no info
Tota T-1 Urres .3,894.06 no info
Frame Relay
208 Q08-6826 .990.20 no info
#178793 .2.579.14 noinfo
70:al Frame Relay .3,569.34 no info
Total Other PaymentsAdju5inents .18,032.50 '3.680.26
i I 'I i
Tota! Payments all Accounts : S 240,756.03 '$245,628.51 I I I
~,EXHIBITr 9/10/01 APPENDIX II
tary to Qwes1 .5 PageData Pmts vsQwest Re::ords.9-1 0-01.s;fJPmtCc~:5,~.of 1I:!...,
375
mpare