20021023Order No 29137.pdf

ORDER NO. 29137 1
Office of the Secretary
Service Date
October 23, 2002
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION

IN THE MATTER OF THE APPLICATION OF
QWEST CORPORATION’S MOTION TO
REOPEN THE SECTION 271 CASE.
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CASE NO. USW-T-00-3

ORDER NO. 29137

Section 271 of the Communications Act of 1934, as amended in 1996, establishes the
means for a Bell Operating Company, which includes Qwest Communications International, Inc.
(Qwest), to obtain authorization from the Federal Communications Commission (FCC) to begin
providing in-region interLATA and interstate telecommunications services. 47 U.S.C. § 271.
The role of the states and their utility regulatory commissions in the application process is
limited. The FCC, in making its determination on a Section 271 application, is merely required
to “consult with the state commission of any state that is the subject of the application in order to
verify the compliance of the Bell Operating Company with the requirements of [Section 271].”
47 U.S.C. § 271(d)(2)(B). In order to provide a meaningful consultation to the FCC, the
Commission participated in a lengthy multi-state proceeding to obtain information on Qwest’s
compliance with the statute’s requirements. The case in Idaho commenced in February 2000
when Qwest filed a Notice of Intention to File a Section 271 Application and a Motion for
Alternative Procedure to Manage the Section 271 Process. The Commission issued a final
decision in that case on June 10, 2002.
Qwest initially filed its Section 271 application with the FCC on June 13, 2002, and
on July 3, 2002, the Commission provided a written consultation to the FCC. Qwest withdrew
its application on September 10, 2002, prior to a decision from the FCC.
After Qwest withdrew its initial application, two separate motions to reopen the
proceedings before the Idaho Commission were filed. Joseph B. McNeal doing business as
PageData (PageData) filed a motion to reopen on September 17, 2002, “based on discrimination
of local Idaho carriers.” AT&T Communications of the Mountain States, Inc. (AT&T) filed its
motion to reopen and supplement the record on September 19, 2002. Noting that Qwest
withdrew its FCC application due to accounting issues and Qwest’s Section 272 affiliate, AT&T

ORDER NO. 29137 2
asked the Commission to reopen the proceeding to “require Qwest Corporation (Qwest) to
supplement the record with sufficient evidence to demonstrate that Qwest and its new Section
272 affiliate are in compliance with Section 272 of the Telecommunications Act of 1996 (Act).”
AT&T Motion, p. 1 (footnote omitted).
Qwest filed a new Section 271 application with the FCC on September 30, 2002,
which issued a notice of the application the same day. See Public Notice, WC Docket No. 02-
0314, DA 02-2438, September 30, 2002. The FCC established October 15, 2002 as the date for
state commissions to provide their written consultations. The Commission filed its written
comments on the date due, adopting by reference the written consultation it filed with the FCC in
Qwest’s initial application.
PageData’s Motion to Reopen
In its motion, PageData asserts that “Qwest has discriminated against PageData for
over four years by not filling requests for additional interconnection capacity including a
continuing, four year old request for ten T-1s in PageData’s Boise location.” PageData further
asserts that Qwest failed to provide the same terms and conditions to PageData as it did to
Western Wireless and New Vector, a Qwest affiliate, in interconnection agreements with those
companies. PageData contends Qwest’s discriminatory action toward PageData results from
Qwest’s failure “to recognize PageData as a full-fledged CMRS carrier equivalent to its
subsidiary, U S WEST’s New Vector, and continues to pigeonhole PageData as a Type 1 only
paging carrier.” PageData by its motion “seeks an order from the Idaho PUC to reopen Qwest’s
Section 271 proceeding to consider new recent evidence of Qwest’s discriminatory practices.”
Qwest filed a response to PageData’s motion on October 3, 2002. Qwest argued
PageData’s motion to reopen must be denied on several grounds, the first of which is
untimeliness. Noting that PageData never intervened in the Section 271 case, Qwest argues its
late motion is “fatally flawed” because it “constitutes the hopelessly belated intervention of a
party that could have participated in this docket when it was open and when the issues it now
advances were being explored.” Qwest also contends the allegations made by PageData are not
properly part of a Section 271 review, and that if any matters of fact remain in dispute in the on-
going litigation between Qwest and PagaData, “those disputes must be addressed outside the
now completed 271 review by this Commission.”

ORDER NO. 29137 3
PageData filed a response to Qwest’s brief on October 9, 2002. PageData provided
more details on its arguments, and includes information of an investigation underway by the
Minnesota Department of Commerce regarding “secret” agreements between Qwest and
Eschelon and McLeod Communications. Referencing a preliminary finding in the Minnesota
case that Eschelon “did not fully participate in Qwest’s [Minnesota] proceeding” because of its
unfiled agreement with Qwest, PageData argues “that Eschelon, and likely others, did not submit
accurate information in Qwest’s Section 271 proceeding in Idaho.” Regarding its claims against
Qwest, PagaData stated it “will leave it to the Idaho Commission’s discretion to hear PageData’s
complaint under Qwest’s 271 proceedings or to hold a separate proceeding to hear PagaData’s
complaint.”
AT&T’s Motion to Reopen
AT&T in its motion notes that the FCC may not approve a Section 271 application
unless it finds interLATA services, once authorized, will be provided by the Bell Operating
Company consistent with the requirements of Section 272. That section requires the Bell
Operating Company to provide such services only through a separate affiliate, and to satisfy FCC
designated accounting standards in transactions between the two entities. 47 U.S.C. § 272(a), (b)
and (c).
Qwest withdrew its initial application at the FCC because accounting irregularities
raised questions regarding Qwest’s ability to comply with the accounting requirements of
Section 272. In the letter to the FCC withdrawing its application, Qwest recognized that
questions were raised by FCC Staff “regarding the issue of whether Qwest Communications
Corporation (QCC), the designated Section 272 affiliate, can be said to meet the requirements of
Section 272, given pending restatement of its financial statements for past periods.” With the
issues that arose regarding QCC, Qwest intends to establish a new Section 272 affiliate, and
AT&T contends “a fresh commission evaluation and recommendation on Qwest’s new separate
subsidiary is imperative.” AT&T asked the Commission to reopen the record on Qwest’s
compliance with Section 272.
On September 20, 2002, Qwest filed a brief in opposition to AT&T’s motion to
reopen and supplement the record. Qwest points out that the telecommunications act requires the
FCC to consult with state commissions “in order to verify the compliance of the Bell Operating
Company with the requirements of subsection (c).” 47 U.S.C. § 271(d)(2)(B). The requirements

ORDER NO. 29137 4
of subsection (c) relate to local competition issues (compliance with the 14 item competitive
checklist and the Track A/B requirements), but subsection (c) does not include compliance with
Section 272 as a subject for FCC consultation with the states. Qwest notes that it is obligated to
prove at the FCC that once Section 271 approval is granted, the books, records and accounts of
Qwest’s long-distance affiliate will comply with FCC rules relating to generally accepted
accounting principles. Thus, although compliance with Section 272 was part of the review
already undertaken by the Commission on Section 271, Qwest argues “it was never required to
do so, and it is neither necessary nor required to repeat that exercise at AT&T’s behest now.”
On September 30, 2002, Qwest filed “supplemental authority” on the points raised by
AT&T’s motion to reopen, consisting of a copy of an order issued by the Washington Utilities
and Transportation Commission denying a similar AT&T motion filed in that state. The
Washington Commission concluded that “[n]either the Act nor the FCC requires this
Commission to reopen the proceeding, and doing so is not in the interest of judicial economy.”
AT&T filed reply comments on September 25, 2002. AT&T contends the
Commission previously reviewed Qwest’s compliance with Section 272 and that significant and
legitimate issues were raised in that review. AT&T argues “[t]here is no assurance that Qwest
will timely implement the required structural, transactional and nondiscrimination safeguards for
its relationship with its new section 272 affiliate.”
DISCUSSION
The Commission has determined to deny both motions to reopen. First, regarding
PageData’s motion, it is clear from other Commission Orders that PageData was aware of
Qwest’s secret agreements and their potential controversy in sufficient time to bring its
arguments to the Section 271 proceeding. The Commission on July 17, 2002 issued Order No.
29064 in Case No. USW-T-99-24, a case in which PageData sought recovery of alleged
overcharges by Qwest. Order No. 29064 is the final Order in the second phase of the case that
commenced in September 1999. One of the claims addressed in Order No. 29064 is that the
Commission’s hearing officer “committed error in failing to compel Qwest to provide certain
agreements to the Pagers,” allegedly “secret interconnection agreements between Qwest and
other telecommunication carriers that have recently been discovered.” Order No. 29064 p. 8. In
discussing the claim, the Commission noted that other “state commissions and the FCC have
initiated proceedings to determine whether these agreements should have been publicly disclosed

ORDER NO. 29137 5
and submitted to the appropriate State commission for review.” Order No. 29064 p. 8. The
Commission specifically noted PageData’s contention that the Minnesota Commission had
determined the secret agreements were interconnection agreements or amendments that should
have been filed with that state commission. The Commission also was aware of and mentioned
Qwest’s petition filed with the FCC on April 23, 2002, seeking a declaratory ruling on whether
the agreements “should have been filed with and approved by the appropriate public utilities
commission.” Order No. 29064 p. 8. PageData filed initial and reply comments in the FCC
docket. FCC Memorandum Opinion and Order, WC Docket No. 02-89, released October 4,
2002, footnote 2.
There can be little doubt that PageData was aware of Qwest’s unfiled agreements
while the Section 271 proceeding was open and underway. In fact, PageData asserts in its reply
brief that “the pagers’ Idaho proceeding was in part the catalyst for the Minnesota and Iowa
investigation into Qwest’s non-filing of interconnection agreements.” PageData’s Reply to
Qwest’s Answer p. 4. It would have been a simple process for PageData to step into the Section
271 proceeding and present its arguments regarding the possible effect of the secret agreements
on Qwest’s compliance with the Section 271 requirements. PageData does not provide an
adequate explanation for failing to participate in the Section 271 proceeding while it was pending
before the Commission.
Second, the relief PageData would obtain by a reopened Section 271 proceeding is
available to it simply by filing its information with the FCC, something PageData apparently has
already accomplished. The Commission’s role in the FCC’s determination of Qwest’s request
for interLATA service authority is limited—the Commission received evidence for a record that
was forwarded, along with a written consultation, to the FCC. If the Commission were to
approve PageData’s motion to reopen, the result would be additional evidence included in the
record to provide to the FCC. By filing its information directly with the FCC, PageData has
achieved the benefit it would obtain in a reopened Section 271 proceeding.
Finally, Qwest refiled its Section 271 application with the FCC on September 30,
2002, and the deadline for state commissions to provide written consultations was October 15,
2002. There simply is no time for this Commission to reopen its case and supplement the record
to provide to the FCC. Issues on Qwest’s compliance with the statutory requirements can be
presented directly to the FCC, and in fact, the Commission received service of the written

ORDER NO. 29137 6
comments filed with the FCC by both PageData and Eschelon, raising the very arguments made
by PageData in its motion to reopen. It is for the FCC to determine whether Qwest will be
granted interLATA authority, as well as the weight to be given PageData’s arguments in that
determination.
The Commission also notes that PageData in its motion argues points that are part of
an on-going dispute it has with Qwest which have been brought to the Commission in other
dockets. For example, PageData argued in Case No. USW-T-99-24 that Qwest failed to fill
PageData’s orders for T-1 trunks, and also that Qwest failed to provide the same interconnection
terms to PageData that it provided to Western Wireless. See Order No. 29064. A reopened
Section 271 proceeding is not the proper place for PageData to argue its individual complaints
against Qwest. To the extent PageData has new legitimate issues on requests it made for
interconnection, the Commission may consider those in an interconnection proceeding, should
PageData choose to file one. See 47 U.S.C. § 252(a)(2) and 252(b).
The Commission also will deny AT&T’s motion to reopen. Qwest withdrew its
initial application from the FCC as the result of discussions with that commission regarding
accounting issues and Qwest’s Section 272 affiliate. As the result, Qwest created a new Section
272 affiliate and refiled its application. AT&T seized that opportunity to argue the state
commissions should reopen the Section 272 review, but it is now for the FCC to determine
whether Qwest satisfies the Section 272 requirements with the changes it made at the FCC’s
behest. As the Washington UTC noted, neither the federal telecommunications act nor the FCC
require this Commission to reopen its proceeding under these circumstances.
O R D E R
IT IS HEREBY ORDERED that the motions to reopen the Section 271 record filed
by PageData and AT&T are denied.

ORDER NO. 29137 7
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this
day of October 2002.

PAUL KJELLANDER, PRESIDENT

MARSHA H. SMITH, COMMISSIONER

DENNIS S. HANSEN, COMMISSIONER

ATTEST:

Jean D. Jewell
Commission Secretary

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