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HomeMy WebLinkAbout20050817Qwest reply brief.pdf:ECEIVED -:- C" ,- L. ~OO5 AUG I 6 P?1 4: 0 a I..J J"i '...; V BEFORE THE SUPRElVIE COURT OF THE STATE OFIiIDwiIO CO~1MISSION JOSEPH B. MCNEAL, D!B! A P AGEDA T A Supreme Court Docket No. 31844 Petitioner-Appellant IPUC Docket No. QWE-O3- , '! . IDAHO PUBLIC UTILITIES COMl\tIISSION And QWEST CORPORATION Res ondents. REPLY BRIEF OF RESPONDENT QWEST CORPORATION APPEAL FROM THE IDAHO PUBLIC UTILITIES COMMISSION Petitioner! Appellant Pro Se WILLIAM J. BATI, ISB No. 2938 BA TI & FISHER, LLP S. Bank Plaza, Suite 500 101 S. Capitol Boulevard Post Office Box 1308 Boise, ID 83701 JOSEPH B. McNEAL D/B/A PAGEDATA 6610 Overland Road Boise, ID 83702 ADAM SHERR QWEST COMMUNICATIONS, INC. 1600 7th Avenue - Room 3206 Seattle, W A 98191 (206) 398-2507 Attorneys for Respondent (Qwest Corporation) DONOY AN E. WALKER DEPUTY A TIORNEY GENERAL IDAHO PUBLIC UTILITIES COMMISSION 472 West Washington Boise, ID 83702, Attorneys for Respondent (Idaho Public Utilities Commission) (C(Q)(P1( T ABLE OF CONTENTSSTATEMENT OF THE CASE . ................................................................................................. I. NATURE OF THE CASE ............................ ............................ ............ ................................. II. COURSE OF PROCEEDINGS ............................................................................................ III. STATEMENT OF FACTS .. ............................................................................................... A. The Opt-In Agreement............................................................................................... B. PageData s Complaint.........................................................................................,...... C. Qwest's Limited Response................ ......................................................................... D. PageData s Reply....................................................................................................... E. Commission Order No. 29687 ................................................................................... F. Petition for Reconsideration......... ..... ......................................................................... G. Order on Reconsideration, Order No. 29726............................................................. 1. Unconscionability...................................... ........................................................ ..... 2. Filed Arbitration Decisions..................................................................................... ISSUES PRESENTED ON ApPEAL.................................. ........................................................ ARGUlVlENT .......................................................................................................................... 8I. STANDARD OF REVIEW .................................................................................................. A. The Commission regularly pursued its authority and made sufficient findings when it declined to exercise its jurisdiction and dismissed PageData s Complaint without prejudice. ........................... ....................... .............. .... ..................... ............................ .. B. The Commission regularly pursued its authority and made sufficient findings to justify its decision to not hold a hearing on PageData s demand for a hearing pursuant to Idaho Code ~ 28-302. ............................................................................................. C. After affirming the Commission s Orders, the Respondent Qwest Corporation contends that the Court should award Attorney Fees. ................................................... CONCLUSION........... ....................... ...... ........ ........... ..... ........................... .... ..... ............ .... . CASES Afton v. Idaho Power Co., 111 Idaho 925 , 929, 729 P .2d 400, 404 (1986) ...................... Boise Water Corp. v. Idaho Public Utilities Commission 128 Idaho 534, 537, 916 P. 1259, 1262 (1996)........................ .......................... ............ ............. ........................... , 14 Driver v. SI Corporation 139 Idaho 423, 426, 80 P .3d 1024, 1027 (2003)........................ Durrant v. Christensen 117 Idaho 70, 74, 785 P .2d 634, 638 (1990) .............................. Excel Leasing Co. v. Christensen 115 Idaho 708, 712, 769 P.2d 585 589 (Ct. App. 1989) .................................................. ................ ........................ .......................................... ... Hayden Pines 111 Idaho at 336, 723 P .2d at 880 (1986) quoting Idaho State Ins. Fund Hunnicutt 110 Idaho 257, 261 , 715 P .2d 927, 931 (1985) ................. ..........................1 0 In the Matter of PageData s Petitions for Arbitration GNR- T -04-, GNR- T -04-, 2004 Ida. PUC LEXIS 66 (2004) ............................................................................................. In the Matter of Review of the Section 251 Unbundling Obligations of Incumbent Local Exchange Carrier, CC Docket No. 01-338, 19 FCC Rcd 13494 (reI. July 13 , 2004)..... In the Matter of Starpower Communications, LLC, Petition for Preemption of Jurisdiction of the Virginia State Corporation Commission Pursuant to Section 252(e)(5) of the Telecommunications Act of 1996, CC Docket No. 00-Memorandum Opinion and Order, FCC 00-216 (reI. June 14 2000) ........................................, 12, 13 In the matter of the Applications of PageData and Wavesent LLC, for Approval of Amendments to Interconnection Agreements QWE- T -03-, QWE- T -03- 7, 2004 Ida. PUC LEXIS 244 (2004)........................................................................... ..................... ... Industrial Customers of Idaho Power v. Idaho PUC 134 Idaho 285 , 288 , 1 P .3d 786, 789 (2000) .............. ................... ..... ........... .......... ......... ................. ........ ........................ ...... , 9 International Assoc. of Firefighters Local 672 v. City of Boise 136 Idaho 162, 168, 30 3d 940, 946 (2001) ................................................................................................., 11 Joseph B. McNeal d/b/a PageData, et al v. Qwest Corporation, et aI, Case No. CIV03- 473-MHW ................ ........... ............................... ................... .......... ............................. Lemhi Tel. Co. v. Mountain States Tel. Tel. Co.98 Idaho 692, 696, 571 P.2d 753 , 757 ( 1977) ......... .... ....... .................................... ........................................................... , 13, 14 Lethrud v. State of Idaho, Industrial Special Indemnity Fund 126 Idaho 560, 563, 887 P .2d 1067 , 1070 (1995) .................................................................................................1 0 Lewis v. CEDU Educ. Serv., Inc.135 Idaho 139, 144, 15 P.3d 1147 1152 (2000)......... Lovey v. Regence Blue Shield of Idaho 139 Idaho 37, 45 , 72 P.3d 877 885 (2003).... Minich v. Gem State Developers, Inc., 99 Idaho 918, 591 P.2d 1078 1085 (1979) ......... Murphy v. Mid- West National Life Insurance Co.139 Idaho 330, 332, 78 P.3d 766, 768 (2003)... .... ... .......... .... .............. ...... ...................... ..................... .................................. 7, 15 Natatorium Co. v. Erb 34 Idaho 209 , 200 P. 348 (1921) ................................................. Northwest Pipeline Corp., v. Forest Weaver Farm, Inc., 103 Idaho 180, 183 646 P. 422, 425 (1982)............................................................................................................. . Opportunity, L.C. v. Ossewarde 136 Idaho 602, 605, 38 P.3d 1258, 1261 (2002)....... Robert Ryder dba Radio Paging Service, Joseph B. McNeal dba PageData and Interpage of Idaho, Inc. and Tel-Car, Inc. v. Idaho Public Utilities Commission and Qwest Corporation Supreme Court Docket No. 29175............................................................. Rosebud Enterprises, Inc. v. Idaho Public Utilities Commission 128 Idaho 609, 618 , 917 P .2d 766, 775 (1996) ................................................................................................., 10 United States v. Utah Power Light Co., 98 Idaho 665 570 P.2d 1353 (1977) ............. S T A TUTES 47 C.R. ~ 51.809..................................................................................................... 47 U.C. ~ 151.................................................................................................................... 47 U.C. ~ 252...................................................................................................., 6, 13, 15 62-615( 1) ...................................................................................... ............ ........................... R. 41 ........................................... ..................... ........................... ..................... ........ .... Idaho Code ~ 12-121 ......................................................................................................... Idaho Code 9 61-629 ....................................................................................................., 10 Idaho Code ~ 62-614 ......................................................................................................., 5 Idaho Uniform Commercial Code ~ 28-302........................................., 8 , 13, 14, 16, 17 Newton s Telecom Dictionary, at p. 380 (18th Ed. 2002) .................................................... CONSTITUTIONAL PROVISIONS Article V, Section 9 of the Idaho Constitution .................................................................... STATEMENT OF THE CASE I. NATURE OF THE CASE This Appeal arises from two final Orders of the Idaho Public Utilities Commission (the Commission) in which it declined to exercise its jurisdiction over PageData s Complaint regarding a contract dispute between Qwest and PageData.The Commission dismissed PageData s Complaint against Qwest without prejudice.l R. at 218. See also R. at 331-337 345-350. II. COURSE OF PROCEEDINGS On October 31 , 2003 , PageData filed a "formal" Complaint alleging Qwest was not in compliance with the tenus of an interconnection agreement between PageData and Qwest (the Agreement). R. at 218-227. On November 26 2005 Qwest filed a Limited Response asserting that the Commission should decline to exercise jurisdiction over the Complaint because it concerned a contract billing dispute covered by the Agreement'arbitration clause.See Agreement, Section 13.Dispute Resolution;" R. at 230-41.PageData filed a Reply to Qwest's Limited Response and a Request for Summary Judgment in response.R. at 242-80. During the next several months the Commission put this case on hold as the parties unsuccessfully attempted to settle issues in other cases PageData had filed against Qwest before the Commission, the Federal Communications Commission (the FCC), and in federal district court.2 R. at 292-, 302-03. On January 19, 2005, the Commission issued Order No. 29687 I An interconnection agreement is an agreement between telecommunications carriers that in general allows their subscribers to dial each other and may also cover issues such as the sharing of revenues and the provisioning of equipment and services. See generally Newton s Telecom Dictionary, at p. 380 (1 8th Ed. 2002). 2 PageData s flfSt litigation against Qwest was filed with the Commission in 1999. That case is now on appeal before this Court. See Robert Ryder dba Radio Paging Service, Joseph B. McNeal dba PageData and Interpage Idaho, Inc. and Tel-Car, Inc. v. Idaho Public Utilities Commission and Qwest Corporation Supreme Court Docket No. 29175. PageData has filed Petitions for Arbitration against Qwest in Case Nos. GNR-04-5 and GNR-05- and challenged matters decided in Case Nos. QWE- T -03-6 and QWE- T -03- 7. In the Matter of PageData IS Petitions for Arbitration, GNR-04-, GNR-04-, 2004 Ida. PUC LEXIS 66 (2004). In the matter of the Applications of BRIEF OF RESPONDENT QWEST CORPORATION, P. 1 declining to exerCIse its jurisdiction and dismissing the Complaint without prejudice.The Commission found the Agreement contained a dispute resolution provision which was the "first and foremost" method for resolving disputes. R. at 331 , 336 & 345. On February 9, 2005 PageData filed a Petition for Reconsideration.R. at 338-345.The Commission denied PageData s Petition, R. at 345-350, and on April 19, 2005, PageData filed a Notice of Appeal. R. at 351-355. III. STATEMENT OF FACTS The Opt-in Agreement Under the Telecommunications Act of 1996, 47 U.C. ~ 151 et. seq. (the Act) state commissions are tasked with approval or rejection of interconnection agreements. See 47 U. 252(e).In 2000, the Commission approved an interconnection agreement that is the underlYing agreement" for the PageData-Qwest agreement from which the dispute in this matter arose. The underlYing agreement was negotiated between Qwest and Arch Paging, Inc. and Mobile Communications Corporation of America (Qwest-Arch Interconnection Agreement). R. at 53-55. Under the Act, Qwest, as an incumbent local exchange carrier must "make available any interconnection, service, or network element provided under an agreement approved under this section to which it is a party to any other requesting telecommunications carrier upon the same terms and conditions as those provided in the agreement" 47 U.C. ~ 252(i); See also R. ~ 51.809. Competitive carriers such as PageData use these provisions to "opt-" to the existing, approved interconnection agreements (so-called "underlYing agreements ) between incumbent local exchange carriers (such as Qwest) and other competitive carriers. That PageData and Wavesent LLC,for Approval of Amendments to Interconnection Agreements QWE-03-, QWE-03-2004 Ida. PUC LEXIS 244 (2004). PageData has also pursued a complaint procedure involving some of the same issues involved in this case at the FCC. On Halloween, 2003 PageData also filed an action against Qwest in the United States District Court for the District of Idaho which was dismissed without prejudice. Joseph B. McNeal d/b/a PageData, et al v. Qwest Corporation, et ai Case No. CIV03-473-MHW. BRIEF OF RESPONDENT QWEST CORPORATION, P. 2 exactly what PageData did in this case, and in so doing, it bound itself to the provisions of that contract, including the arbitration clause. In 2002, PageData informed Qwest it wished to opt into all of the terms of the Qwest Arch-Interconnection Agreement 3 R. at 73-74. Subsequently, Qwest and PageData filed a joint Application with the Commission requesting approval of PageData s adoption of the entire Qwest-Arch Interconnection Agreement (as amended). R. at 70-72. The parties' Application signed by PageData, stated that PageData s adoption of the Qwest-Arch Agreement was reached through voluntary negotiations R. at 70 (emphasis added).The parties also represented that approval of the Agreement was in the public interest. R. at 71. In approving this Agreement the Commission found it "was consistent with the public interest, convenience and necessity and (did) not unfairly discriminate." R. at 75-80. PageData s Complaint PageData s Complaint alleged that Qwest had not complied with the reciprocal compensation provisions of the Agreement. R. at 218. PageData sought an Order from the Commission requiring Qwest to remit cash payments for reciprocal compensation or, at a minimum, to issue credits for the same. R. at 219. Owest's Limited Response Qwest asserted that the Commission should not exercise its jurisdiction over PageData Complaint and should dismiss it because: 1) the parties' voluntary negotiated interconnection agreement set out detailed procedures for resolving disputes through arbitration, R. at 230; See also R. at 34; and, 2) resolution of this contract dispute depended on one narrow factual issue 3 It is important to note that when PageData made its opt-in request 47 C.R. ~ 51.809 allowed a carrier two options, either to opt-into all of the terms of an existing agreement or only certain provisions of it. PageData chose the later course. Today parties can only opt-into entire agreements. In the Matter of Review of the Section 251 Unbundling Obligations of Incumbent Local Exchange Carrier CC Docket No. 01-338, 19 FCC Rcd 13494 (reI. July 13 , 2004)(FCC adoption of "all or nothing" rule). BRIEF OF RESPONDENT QWEST CORPORATION, P. 3 the intent of the contracting parties. R. at 230. Qwest also stated that resolution of this contract dispute was not important to questions of telecommunications law, nor would it affect other Idaho telecommunications carriers or the telecommunications industry as a whole. Id. Qwest also stated that the FCC had stated a state commission may not have responsibility to decide a dispute under an interconnection agreement if the parties had contractually agreed to a dispute resolution c1ause. Qwest also asserted that as a general matter, the construction and enforcement of contract rights in Idaho lies in the jurisdiction of the courts and not the Commission. R. at 236. Qwest argued that where the courts and Commission have concurrent jurisdiction over a contract dispute, the Commission must exercise restraint and should detennine whether assertion of its jurisdiction is in the public interest. R. at 236-37. Qwest requested the Commission deny the relief requested by PageData and dismiss the Complaint PageData s Reply PageData urged the Commission to reject Qwest's Limited Response and its assertions insisting the Commission had jurisdiction to resolve disputes concerning interconnection agreements pursuant to Idaho Code ~~ 62-614 and 62-615(1). R. at 246-49. PageData argued In the Matter of Starpower Communications, LLC the FCC stated: We note that, in other circumstances, parties may be bound by dispute resolution clauses in their interconnection agreement to seek relief in a particular fashion, and, therefore, the state commission would have no responsibility under section 252 to interpret and enforce an existing agreement. In this case, however, the relevant interconnection agreements do not expressly specify how the disputes shall be resolved. In the Matter of Starpower Communications, LLC, Petition for Preemption of Jurisdiction of the Virginia State Corporation Commission Pursuant to Section 252(e)(5) of the Telecommunications Act of 1996, CC Docket No. 00- , Memorandum Opinion and Order, FCC 00-216 (reI. June 14 2000). BRIEF OF RESPONDENT QWEST CORPORATION, P. 4 that Section 13.14 of the Interconnection Agreement provided three methods of dispute resolution and Qwest was bound by PageData s selected method. R. at 250. Commission Order No. 29687 On January 19, 2005, the Commission issued Order No. 29687 declining to exercise its jurisdiction over PageData s Complaint R. at 331-337. The Commission found Qwest and PageData had voluntarily agreed to adopt the entire Qwest-Arch Paging Interconnection Agreement which included a dispute resolution provision. R. at 335. The Commission found that Section 13.14 of the parties' Agreement , contained detailed procedures for utilizing the AAA arbitration rules to resolve disputes and as such "the parties clearly contemplated utilizing arbitration when they cannot resolve their dispute informally.R. at 336. The Commission stated Idaho case law has recognized there is a strong public policy in favor of arbitration and that arbitration "is a favored remedy" for resolving disputes citing International Assoc. of Firefighters Local 672 v. City of Boise 136 Idaho 162, 168, 30 P.3d 940, 946 (2001) and Driver v. SI Corporation 139 Idaho 423 , 426 , 80 P.3d 1024, 1027 (2003). Id. Based on the foregoing, the Commission found that although the dispute resolution provision did not limit the parties' right to seek relief from it, the arbitration process was the first and foremost" method for resolving disputes.Id. In closing the Commission commented: Even though the Commission declines jurisdiction in this case, PageData is not without a remedy. As PageData recognized, it may submit this dispute to arbitration or the FCC under Section 13.14. R. at 336. 5 The Commission also addressed what it called PageData s misplaced reliance on Idaho Code ~ 62-614 fmding it was not applicable to PageData because it was not a Title 61 LEC providing local exchange service but rather a telephone corporation providing radio paging services and thus was "exempt from any requirements of title 61 , or chapter 6, title 62, Idaho Code.Id. BRIEF OF RESPONDENT QWEST CORPORATION, P. 5 Petition for Reconsideration On February 9, 2005, PageData filed a Petition for Reconsideration asserting primarily that the Commission had erred in declining to resolve its Complaint because its Order No. 29687 had made the dispute resolution clause in the parties' Agreement unconscionable. R. at 338. PageData requested that the Commission hold a hearing pursuant to Idaho Code ~ 28-302 to investigate Section 13.14. R. at 340. PageData also alleged 47 U.C. ~ 252(i) of the Act requires that "the resolution of a reciprocal compensation dispute be filed. . . and available for adoption by other carriers." R. 347. Finally, PageData asserted that there was "no mechanism in Idaho statutes" to incorporate a private arbitration decision into an interconnection agreement thus his billing dispute with Qwest should be resolved by the Commission. Id. Order on Reconsideration. Order No. 29726 On March 9 , 2005 , the Commission issued Order No. 29726 denYing PageData s Petition for Reconsideration. R. at 345-350. In its findings the Commission addressed two primary issues raised by PageData: (1) whether the dispute resolution clause was unconscionable, and (2) the filing of arbitration decisions. Unconscionability The Commission noted that Idaho Code ~ 28-302, part of the Idaho Uniform Commercial Code, did not confer jurisdiction upon the Commission. R. at 348. Rather, the Commission stated the plain text of the statute provided that arguments and evidence of unconscionability must be presented to a court - not the Commission. Id. Accordingly, the Commission found his request for a hearing was without merit. The Commission also found, as it did in Order No. 29687, there is a strong public policy in favor of arbitration and arbitration clauses. R. at 349. Thus, it was declining to exercise its BRIEF OF RESPONDENT QWEST CORPORATION, P. 6 jurisdiction when the parties had "voluntarily negotiated" the adoption of an interconnection agreement which included a dispute resolution provision that was clearly the "first and foremost" method selected by the parties to resolve their disputes. Id. The Commission also found the construction and enforcement of contracts is generally " matter which lies in the jurisdiction of the courts and not with it citing Lemhi Tel. Co. Mountain States Tel. Tel. Co.98 Idaho 692, 696, 571 P.2d 753 , 757 (1977). R. at 348. The Commission recognized there were exceptions to this general rule but none were applicable. Id. The Commission also addressed PageData s unconscionability argument substantively. The Commission reasoned that to be voided as unconscionable an arbitration provision had to be both procedurally and substantively unconscionable. R. at 348. The Commission noted that the Idaho Supreme Court has recognized that an arbitration clause "may be unenforceable if large arbitration costs preclude the party from effectively vindicating the party s federal statutory rights in the arbitral forum.Murphy v. Mid- West National Life Insurance Co.139 Idaho 330 332, 78 P.3d 766, 768 (2003) quoting Lovey, 139 Idaho at 45, 72 P.3d at 885. The Commission stated that in Murphy, the arbitration clause required: 1) each party to pay for its own arbitrator; 2) equally share the expenses of a third arbitrator; pay for all other expenses of arbitration; and 4) pay for their attorney fees and expenses for witnesses. R. at 349. The Commission found that the arbitration provision in Murphy stood in "stark contrast" to the dispute resolution provision contained in Section 13.14 which provided for a single arbitrator and the prevailing party "shall be entitled to an award of a reasonable attorney s fees and costs.R. at 349. Based on the foregoing, the Commission did not find the tenns of Section 13.14 to be unenforceable. Id. Filed Arbitration Decisions The Commission found PageData s argument regarding the filing of arbitration decisions with state commissions unpersuasive because it was unaware of any impediment to either party BRIEF OF RESPONDENT QWEST CORPORATION, P. 7 filing an arbitration decision with the Commission to amend or clarify their interconnection agreement. R. at 349. Following the issuance of this Order PageData filed its Notice of Appeal. ISSUES PRESENTED ON ApPEAL The Commission regularly pursued its authority and made sufficient findings when it declined to exercise its jurisdiction and dismissed PageData s Complaint without prejudice. The Commission regularly pursued its authority and made sufficient findings to justify its decision to not hold a hearing on PageData s demand made pursuant to Idaho Code 28-302. After affirming the Commission s Orders, the Respondent Qwest Corporation contends that the Court should award Attorney Fees. ARGUMENT I. ST ANDARD OF REVIEW Article V, Section 9 of the Idaho Constitution provides the Supreme Court shall have jurisdiction to review on appeal any order of the Commission. Boise Water Corp. v. Idaho Pubic Utilities Commission 128 Idaho 534, 537, 916 P.2d 1259, 1262 (1996). Idaho Code ~ 61-629 defines the scope of the Supreme Court's limited review and states in relevant part: The review on appeal shall not be extended further than to determine whether the commission has regularly pursued its authority, including a determination of whether the order appealed from violates any right of the appellant under the constitution of the United States or of the state of Idaho. Idaho Code ~ 61-629. See also Industrial Customers of Idaho Power v. Idaho PUC, 134 Idaho 285, 288, 1 P .3d 786, 789 (2000).In Industrial Customers the Court stated review of BRIEF OF RESPONDENT QWEST CORPORATION, P. 8 Commission determinations as to "questions of law" is limited to a determination of whether the Commission has regularly pursued its authority and whether the constitutional rights of the appellant have been violated. Industrial Customer 134 Idaho at 288, 1 P.3d at 789. PageData has not alleged its constitutional rights were violated, thus the question is whether the Commission regularly pursued its authority in this matter. Regarding "questions of fact " the Court stated that where the Commission s findings are supported by substantial competent evidence in the record, the Court must affirm those findings and the Commission s decision. Id. The Commission s findings of fact are to be sustained unless it appears that the clear weight of the evidence is against its conclusions or that the evidence is strong and persuasive that the Commission abused its discretion. Industrial Customers 134 Idaho at 288 , 1 P.3d at 789. The Court will not displace the Commission s findings of fact when faced with conflicting evidence , " even though the Court would have made a different choice had the matter been before it de novo." Rosebud Enterprises, Inc. v. Idaho PUC 128 Idaho 609, 618, 917 P.2d 766 775 (1996). Thus, the Commission s findings of fact in this case are entitled to a presumption of coITectness and the burden is on PageData to show those findings are unsupported by the evidence. Industrial Customers 134 Idaho at 292, 1 P.3d at 793. This Court must view the facts and inferences of the Commission in the light most favorable to the party who prevailed before the Commission.Lethrud v. State of Idaho, 6 The Court has set the test for substantial and competent evidence as follows: The "substantial evidence rule" is said to be a "middle position" which precludes a de novo hearing but nonetheless requires a serious review which goes beyond the mere ascertainment of procedural regularity. Such a review requires more than a mere "scintilla" of evidence in support of the agency s detennination, though "something less than the weight of the evidence. " " Put simply , we wrote, "the substantial evidence rule requires a court to detennine 'whether (the agency s) fmdings of fact are reasonable. Industrial Customers 134 Idaho at 293, 1 P.3d at 794 quoting Idaho State Insurance Fund v. Hunnicutt 110 Idaho 257,260, 715 P.2d 927, 930 (1985 (citations omitted). BRIEF OF RESPONDENT QWEST CORPORATION, P. 9 Industrial Special Indemnity Fund 126 Idaho 560, 563 , 887 P.2d 1067 1070 (1995). Simply put, findings of the Commission must be reasonable "when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the (Commission s) view. Hayden Pines 111 Idaho at 336, 723 P.2d at 880 quoting Idaho State Ins. Fund v. Hunnicutt 110 Idaho 257 , 261 , 715 P.2d 927, 931 (1985). The Commission s findings need not take any particular form so long as they fairly disclose the basic facts upon which the Commission relies and support the ultimate conclusions. What is essential are sufficient findings to permit the reviewing Court to determine that the Commission has not acted arbitrarily. Rosebud 128 Idaho at 624, 917 P.2d at 781. If the Court finds that the Commission has not "regularly pursued its authority," then it shall set aside the Commission s Orders in whole or in part and remand it to the Commission for its consideration. Idaho Code ~ 61-629. A. The Commission regularly pursued its authority and made sufficient findings when it declined to exercise its iurisdiction and dismissed PageData s Complaint without preiudice. Although PageData raises multiple issues, the primary issue on appeal is whether the Commission erred in declining to exercise its jurisdiction over PageData s Complaint and dismissing it without prejudice.In both final Orders, the Commission focused on the dispute resolution provision contained in Section 13.14 of the parties' Agreement. The Commission noted that the parties had voluntarily negotiated and adopted the terms of the Qwest-Arch Interconnection Agreement in their entirety. The record also shows that at the start of the negotiations, PageData specifically requested that Qwest allow it to opt-into this agreement, R. at , which included a dispute resolution provision stating in pertinent part: 7 For instance, PageData argues that the Commission elTed by granting Qwest's motion to dismiss. Qwest filed no such pleading and even if its Limited Response were considered in that vein the Commission in its discretion was justified in dismissing the Complaint without prejudice in the absence of Qwest's pleading. BRIEF OF RESPONDENT QWEST CORPORATION, P. 10 If any claim. controversy or dispute between the Parties. their agents. employees. officers. directors or affiliated agents ("Dispute ) cannot be settled through negotiation. it shall be resolved by arbitration under the then current rules of the American Arbitration Association ("AAA"l:.The arbitration shall be conducted by a single neutral arbitrator familiar with the telecommunications industry and engaged in the practice of law. . .. The Federal Arbitration Act, 9 U.C. Secs. 1- , not state law, shall govern the arbitrability of all Disputes. . . . All expedited procedures prescribed by the AAA rules shall apply and the rules used shall be those for the telecommunications industry. The arbitrator s award shall be final and binding and may be entered in any court having jurisdiction thereof. The prevailing Party, as determined by the arbitrator, shall be entitled to an award of reasonable attorneys' fees and costs. The arbitration shall occur at a mutually agreed upon location. Nothing in this Section shall be construed to waive or limit either Party s right to seek relief from the Commission or the FCC as provided by state or federal law. R. at 34. The Commission found that Section 13.14 had detailed procedures for utilizing the AAA arbitration rules to resolve disputes. As such the Commission decided that "the parties clearly contemplated utilizing arbitration when they cannot resolve their dispute informally." R. at 336. The Commission found that the intent of this provision was consistent with Idaho case law that recognizes there is a strong public policy in favor of arbitration and that arbitration is " favored remedy" for resolving disputes. International Assoc. of Firefighters, Local 672 v. City of Boise 136 Idaho 162, 168, 30 P.3d 940, 946 (2001).Lastly, the Commission found that although Section 13.14 did not limit the parties' right to seek relief from the Commission , the arbitration process was still the "first and foremost" method for resolving disputes under the ICA.8 R. at 336. Accordingly, it seems clear that the Commission found that the terms of the dispute resolution provision were unambiguous. 8 Although the FCC has held that state commissions can interpret and enforce previously approved intercOImection agreements it also held that: in other circumstances, parties may be bound by dispute resolution clauses in their interconnection agreement to seek relief in a particular fashion, and, therefore, the state commission would have no responsibility under section 252 to interpret and enforce an existing agreement. In the Matter of Starpower Communications, LLC, Petition for Preemption of Jurisdiction of the Virginia State Corporation Commission Pursuant to Section 252 (e) (5) of the Telecommunications Act of 1996, CC BRIEF OF RESPONDENT QWEST CORPORATION, P. 11 When the terms of a contract are unambiguous, interpretation of the contract and its legal effect are questions of law. Opportunity, L.C. v. Ossewarde 136 Idaho 602, 605 , 38 P. 1258 , 1261 (2002). An unambiguous contract will be given its plain meaning, which is based on the words of the contract. Id. A contract is ambiguous if it is reasonably subject to conflicting interpretations. Lewis v. CEDU Educ. Serv., Inc.135 Idaho 139, 144, 15 P.3d 1147, 1152 (2000). In this matter the terms of the dispute resolution provision are clearly unambiguous. There is nothing unclear about the language "shall be resolved by arbitration" and as such the Commission s decision to not exercise its jurisdiction in this matter are clearly reasonable rational and not contrary to the law. PageData argues that the Commission erred when relying on Idaho case law addressing arbitration and arbitration provisions because they don t provide that a decision reached arbitration be available to other parties. This argument is simply without merit as there is no authority which prevents the Commission from consulting Idaho cases on a variety of topics for guidance. Additionally, the language of the dispute resolution clearly shows that the parties intended to use arbitration first to resolve disputes under their Agreement. Thus, even without citation to these authorities Qwest believes the Commission s decision would have been the same. Finally, this argument is moot as the Commission expressly found it was aware of no impediment to the filing of an arbitration decision as an amendment or clarification to an existing interconnection agreement at a state commission despite PageData s concern. R. at 349. PageData also argues that Qwest is contractually bound to face its Complaint before the Commission because it selected that forum. Again, this completely ignores the clear intent of the Docket No. 00-Memorandum Opinion and Order, FCC 00-216, 15 FCC Red. 11277, 11280, n.14 (rei. June 14 2000).9 Pagedata is not without a remedy as it can go to arbitration or the FCC, after which, the Commission implied that PageData could file the produced result with the Commission. R. at 349. BRIEF OF RESPONDENT QWEST CORPORATION, P. 12 dispute resolution provision in the parties' Agreement , which is that the parties shall arbitrate disputes. Although the parties are permitted to seek relief in other forums they are contractually bound to using arbitration first when disputes arise. The Commission s Order merely holds the parties to their Agreement leaving open the ability to return to it, if necessary, once arbitration has been completed.1O As noted in the FCC' Starpower decision 11 the Commission has no responsibility under 47 D.C. ~ 252 to interpret and enforce an existing interconnection agreement that contains a dispute resolution clause. B. The Commission regularly pursued its authority and made sufficient findings to justify its decision to not hold a hearing on PageData s demand made pursuant to Idaho Code 28-302. PageData argued in its Petition for Reconsideration that the Commission should hold a hearing pursuant to Idaho Code ~ 28-302 to determine whether the dispute resolution provision in the parties' Agreement was unconscionable. As has been stated on numerous occasions by the Court, the Commission has no authority other than that given to it by the Legislature. It exercises a limited jurisdiction and nothing is presumed in favor of its jurisdiction. United States v. Utah Power Light Co., 98 Idaho 665 570 P.2d 1353 (1977); Lemhi Tel. Co. v. Mountain States Tel. Tel. Co., 98 Idaho 692, 571 P. 753 (1977). In this context the Commission correctly found that Idaho Code ~ 28-302 does not confer jurisdiction to hold the type of hearing PageData demanded. The language of this provision makes this clear as it provides that evidence of unconscionability shall be presented to 10 The Commission decision could also be interpreted as a fmding that PageData's Complaint was not ripe. Traditional ripeness doctrine requires a party to prove 1) that the case presents definite and concrete issues, 2) that a real and substantial controversy exists, and 3) that there is a present need for adjudication. Boundary Backpackers Boundary County, 128 Idaho 371 , 376, 913 P.2d 1141, 1146 (1996). Here the Commission decided in essence that it did not need to resolve this matter at this time because the parties by their Agreement made clear that they would use arbitration first before coming to it. 11 See, In re Starpower Communications, supra 14. BRIEF OF RESPONDENT QWEST CORPORATION, P. 13 a "court.See Idaho Code ~ 28-302.13 The Commission is a quasi legislative body, Boise fVater Corp. v. Idaho Public Utilities Commission, 97 Idaho 832, 838, 555 P.2d 163, 169 (1976), and not a court of law. Natatorium Co. v. Erb 34 Idaho 209, 200 P. 348 (1921).Further, a close review of the Commission s statutory authorities, rules and orders shows that no reference has ever been made to Idaho Code 9 28-302 to allow for the type of hearing PageData requests. Based on this reasoning alone the Court should affirm the Commission s decision to deny PageData s request for a hearing. The Commission also correctly recognized that the construction and enforcement of contracts is generally "a matter which lies in the jurisdiction of the courts and not the public utilities commission" unless both parties agree to let the Commission settle their dispute citing Lemhi Telephone Co. v. Mountain States Tel. Tel. Co., 98 Idaho 692, 696, 571 P .2d 753 , 757 (1977); Afton v. Idaho Power Co., 111 Idaho 925, 929, 729 P.2d 400, 404 (1986). In this matter not only is the Commission without jurisdiction to hold a hearing pursuant to Idaho Code ~ 28- 302, the question PageData has raised about the dispute resolution provision should not be entertained by the Commission as both parties have not provided consent for the Commission to interpret Section 13.14. Finally, despite its preVIOUS findings the Commission addressed PageData argument that the dispute resolution in the parties' Agreement was unconscionable. In finding that the dispute resolution was not unenforceale the Commission noted the dispute resolution provision provided for a single arbitrator and stated the prevailing party "shall be entitled to an award of a reasonable attorney s fees and costs." R. at 349. The Commission noted that in Lovey v. Regence Blue Shield of Idaho 139 Idaho 37, 45 13 See also Official Comment # 3 to the Text of ~ 28-302 which provides "(t)he present section is addressed to the court, and the decision is to be made by it." BRIEF OF RESPONDENT QWEST CORPORATION, P. 14 72 P.3d 877, 885 (2003), the Court held that an arbitration clause that required each party to pay its own costs is not unconscionable. The Commission reasoned that this provision stood in start contrast to provisions which the Court had invalidated.14 Based on the foregoing, the Commission found that Section 13.14 was not unenforceable. R. at 349. Procedurally, Section 13.14 is clearly not unconscionable.Procedural unconscionability arises only when the contract "was not the result of free bargaining between the parties.Northwest Pipeline Corp., v. Forest Weaver Farm, Inc., 103 Idaho 180, 183 , 646 P .2d 422, 425 (1982). Indicators of procedural unconscionability generally fall into two areas: lack of voluntariness and lack of knowledge. Here, it is undisputed that the Agreement was voluntarily negotiated based upon PageData s initiating request. R. at 70-, 335. PageData could have negotiated an interconnection agreement with terms different from the underlying Qwest-Arch Agreement or picked and chose only the terms it wanted from that agreement pursuant to 47 C.R. ~ 51.809. See generally C. ~ 252. If there were terms upon which Qwest and PageData could not agree, the Act provides a method by which the Commission could resolve those issues to produce a final binding contract. Instead, PageData chose to opt into the underlying agreement. As to knowledge, Joseph McNeal d/b/a PageData has appeared pro se numerous proceedings regarding paging services before the Commission, other state commissions and participated in proceedings concerning paging before the FCC. He is clearly knowledgeable about the services he provides and the contracts that he has entered into with other carriers in order to provide his services to his customers. Clearly, 14 See Murphy v. Mid-West, National Life Insurance Co.139 Idaho 330, 332, 78 P.3d 766, 768 (2003) (Arbitration provision unenforceable due to prohibitive cost that would be intUITed through requirement that: 1) each party to pay for its own arbitrator; 2) equally share the expenses of a third arbitrator; pay for all other expenses of arbitration; and 4) pay for their attorney fees and expenses for witnesses. BRIEF OF RESPONDENT QWEST CORPORATION, P. 15 PageData did not suffer from a lack of knowledge when he entered into the Agreement with Qwest. Based on the foregoing, the Commission regularly pursued its authority and made sufficient findings to justify its decision to not hold a hearing on PageData s demand made pursuant to Idaho Code ~ 28-302 and to further find that Section 13.14 is not unconscionable or unenforceable. Accordingly, the Commission s Orders should be affirmed. C. After affirming the Commission s Orders. the Respondent Qwest Corporation contends that the Court should award Attorney Fees. Qwest respectfully requests that if the Commission s Orders are affirmed it be granted an award of attorney s fees pursuant to Idaho Code ~ 12-121 and Rule 41 of the Idaho Appellate Rules. This Court has held an award of attorney fees may be granted to the prevailing party pursuant to Idaho Code ~ 12-121 and I.A.R. 41. Durrant v. Christensen 117 Idaho 70, 74, 785 2d 634, 638 (1990); See also Excel Leasing Co. v. Christensen 115 Idaho 708 , 712, 769 P. 585, 589 (Ct. App. 1989). Such an award is appropriate when the Court is left with the abiding belief that the appeal has been brought, or defended frivolously, unreasonably, or without foundation. Id. However, attorney fees will not be awarded where the losing party brought the appeal in good faith and where a genuine issue of law was presented. Minich v. Gem State Developers, Inc., 99 Idaho 918 , 591 P.2d 1078, 1085 (1979). Although proceeding pro se, PageData has negotiated several contracts with Qwest. As such, he was undoubtedly aware that the Agreement he voluntarily entered into with Qwest required the parties to use arbitration as the first and foremost method for resolving contractual disputes. Once the Commission directed the parties toward arbitration in its Orders PageData should have proceeded to that forum.Instead, PageData traveled down the current path BRIEF OF RESPONDENT QWEST CORPORATION, P. 16 challenging the Commission s well reasoned exercise of discretion in dismissing his Complaint without prejudice. Put simply, PageData s appeal is without foundation. As a result Qwest and the Commission have been forced to defend this appeal and in the process incurred significant costs. Accordingly, Qwest requests that the Court award it a reasonable amount of attorney fees for defending this appeal. CONCLUSION The Commission s final orders: (1) declining to exercise its jurisdiction to resolve PageData s Complaint and dismissed the Complaint it without prejudice; (2) declining to hold a hearing pursuant to Idaho Code ~ 28-302; and, (3) finding that the dispute resolution clause was no unenforceable. Accordingly, the Commission s decisions were based upon rational, sufficient and reasonable findings which are not contrary to the law. Consequently, the Commission has regularly pursued its authority and its decisions should be affirmed. DATED this 16th day of August, 2005. Respectfull y S ubmi tted Adam Sherr Qwest Communications, Inc. 1600 7th Avenue - Room 3206 Seattle, W A 98191 and Jo . Hammond, Jr. att Fisher, LLP ank Plaza, 5th Floor 101 South Capital Blvd. Boise, Idaho 83702 (208) 331-1000 BRIEF OF RESPONDENT QWEST CORPORATION, P. 17 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 16th day of August, 2005 , I caused a true and correct copy of the above and foregoing document to be served, in the manner indicated on the following: Joseph B. McNeal d/b/a P AGEDATA O. Box 15509 Boise, ill 83715 Telephone: (208) 375-9844 Donovan E. Walker Deputy Attorney General IDAHO PUBLIC UTILITIES COMMISSION 472 West Washington O. Box 83720 Boise, ID 83720-0074 Telephone: (208) 334-0357 Fax: (208) 334-3762 Hand Delivery ~ U.S. Mail Facsimile Federal Express ~ Hand Delivery 0 U.S. Mail Facsimile Federal Express BRIEF OF RESPONDENT/CROSS APPELLANT QWEST CORPORATION, P.l