20000705Order No 28427.doc

BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION

IN THE MATTER OF THE JOINT PETITION OF ROBERT RYDER, DBA RADIO PAGING SERVICE, JOSEPH MCNEAL, DBA PAGEDATA AND INTERPAGE OF IDAHO, FOR A DECLARATORY ORDER AND RECOVERY OF OVERCHARGES FROM U S WEST COMMUNICATIONS, INC.
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CASE NO. USW-T-99-24

ORDER NO. 28427

On September 24, 1999, Robert Ryder dba Radio Paging Service, Joseph McNeal dba PageData and Interpage of Idaho filed a Petition for Declaratory Order stating two counts for relief. All Petitioners are one-way paging companies that have purchased the use of facilities off of U S WEST Communications, Inc.’s price list (“Price List”).
In Count I, the Petitioners allege that the Telecommunications Act of 1996 (47 U.S.C. §§ 153 et seq.) and the Federal Communications Commission (FCC) rules (47 C.F.R. § 51.701) prohibit U S WEST from charging them or other paging companies for using U S WEST’s transmission facilities on a dedicated basis to deliver local traffic to them that originates on U S WEST’s network. Rates and charges for the use of these facilities are found in the U S WEST Price List for Title 62 services. Petitioners do not allege that U S WEST failed to charge the rates contained in the Price List on file with the Commission. Rather, they request the Commission find that the federal law prohibits U S WEST from charging them, or any other paging service, and further request the Commission declare portions of the U S WEST Price List for Title 62 services void. They also request recovery of any amounts paid U S WEST for such Price List services from September 1996 through the time each Petitioner entered into a Type I Paging Interconnection Agreement.
In Count II, without identifying any specific company, Petitioners allege that U S WEST has offered or provided other paging companies more favorable terms, conditions or rates than have been offered them. They allege this is “in violation of Section 252(i) of the [Federal Telecommunications] Act [of 1996].” The Petitioners, therefore, request the Commission order U S WEST to reimburse them these alleged overcharges.
On December 20, 1999, the Commission ordered the parties to brief the issue of whether the Commission has jurisdiction to adjudicate the claims made by the Petitioners. The parties filed opening briefs on January 24, 2000. After reviewing the parties’ opening briefs, the Commission ordered the Staff to file a brief concerning the Commission’s authority. Staff filed its brief on March 24, 2000. U S WEST filed its reply brief on April 7, 2000. On April 17, 2000, the Petitioners sent a letter to the Commission indicating they were not filing a reply brief but responded to several issues raised in Staff’s brief. Oral argument was held May 24, 2000.
Based on the record, the briefs, oral argument, and the law, the Commission finds it has jurisdiction to consider the Petition. The Commission further finds that because both counts can be resolved as a matter of law, further evidentiary proceedings are not necessary. Based on the facts alleged by the Petitioners, the merits of the claims and the law, the Commission dismisses both counts of the Petition.
RELEVANT BACKGROUND
The Petitioners, PageData, Radio Paging, InterPage and Tel-Car, are Commercial Radio Service Providers (CMRS) providing one-way paging services to their customers in Idaho through what is commonly called a Type 1 Interconnection with the U S WEST network. According to their Petition, since September 1996, each Petitioner has purchased and, in some instances, continues to purchase certain facilities (unbundled network elements) from the U S WEST Price List. These facilities are dedicated to each Petitioner’s use for interconnecting with U S WEST and for transporting traffic to the Petitioners’ respective customers. The Petitioners contend U S WEST is prohibited from charging for the use of these facilities. They further contend that federal law has prohibited charging paging companies for the use of these facilities since September 1996, the date the FCC rules applicable to interconnection became effective. 47 CFR Part 51
This claim is predicated on a letter dated December 30, 1997 (the “Metzger letter”), which was written by the then Chief of the Common Carrier Bureau for the FCC, A. Richard Metzger. The Metzger letter purports to interpret 47 C.F.R § 51.703. This FCC rule addresses the reciprocal compensation obligations for local exchange carriers and states as follows:
51.703 Reciprocal compensation obligation of LECs.

(a) Each LEC shall establish reciprocal compensation arrangements for transport and termination of local telecommunications traffic with any requesting telecommunications carrier.

(b) A LEC may not assess charges on any other telecommunications carrier for local telecommunications traffic that originates on the LEC's network.
The scope of the rule has nothing to do with the costs associated with the use of facilities dedicated to a paging company for interconnecting with the LEC’s network.
However, in his letter, Metzger interpreted this rule to mean “the Commission’s current rules do not allow a LEC to charge a provider of paging services for the cost of LEC transmission facilities that are used on a dedicated basis to deliver to paging service providers local telecommunications traffic that originates on the LEC’s network.” The Petitioners rely on this letter and maintain that U S WEST cannot charge them for the dedicated facilities used to deliver traffic to them.
PageData and Radio Paging negotiated Interconnection Agreements pursuant to Sections 251 and 252 of the Federal Telecommunications Act of 1996 and no longer purchase network elements under the Price List. PageData’s Interconnection Agreement was approved by the Commission pursuant to Section 252 of the Federal Telecommunications Act of 1996 on September 10, 1999, in Order No. 28139. Radio Paging’s Interconnection Agreement was approved May 13, 1999, in Order No.  20832. They are seeking reimbursement for charges imposed pursuant to the Price List up to the date their respective Interconnection Agreements were approved.
InterPage and Tel-Car are still purchasing services and facilities from the Price List and request recovery of all charges. They have no interconnection agreements.
All the Petitioners request the Commission order U S WEST to reimburse them for all charges incurred under the Price List during the period of time not covered by an Interconnection Agreement. Moreover, regardless of how their assertions are characterized, they all contend that these services and dedicated facilities used to deliver traffic to them must be provided free of charge.
COMMISSION FINDINGS
The Commission finds that as one-way paging services, the Petitioners’ paging customers only receive calls but do not initiate calls to customers on U S WEST’s network. In one-way paging, when a caller dials a paging customer, the call is initially transported on the local exchange carrier’s (LEC) network, then handed off to the paging carrier for ultimate delivery to the called or paged party. A one-way paging service enables its customers to be contacted by specific individuals to whom the number has been given. In other words, the paging company customers induce all calls made – but for the paging customer, the calls would not be made to the paging number.
It is uncontroverted that interconnection and transmission of calls from LEC customers to the paging company require dedicated two-way switching and dedicated transport – in other words, the use of the LEC’s network elements. The LEC must perform a two-switch operation that is virtually identical to the two-switch operation necessary to terminate calls on the LEC’s own network. It is these facilities and services, including the dedicated switching and lines, that are the subject of the Price List at issue and the Petition.
After the Idaho Telecommunications Act of 1988 became law, U S WEST filed an election to remove certain services from Title 61 regulatory authority. See Case No. MTB-T-89-1; Order No.  22552. The Price List at issue in this Petition is part of U S WEST’s Exchange and Network Catalog (commonly called the “Title 62 Catalog”) filed with the Commission in 1993. See Case No.  USW-S-93-6, Order No. 25294. Title 62 services are regulated by the Commission differently from Title 61 services.
For example, while Title 61 services are fully regulated for all purposes, including rates and terms for service. Title 62 services are not subject to rate regulation by the Commission. Under Title 62, U S WEST is allowed to set the rates for Title 62 services. In addition, U S WEST is required to file tariffs or price lists which reflect the availability, price, and terms and conditions for Title 62 services for information purposes only. Idaho Code §  62-606. In other words, whereas the Commission reviews and evaluates the reasonableness of proposed rates, terms, and conditions for Title 61 services and is required to approve those rates and conditions, its authority over Title 62 services was expressly limited by the legislature. The services and facilities at issue in this Petition, are not part of U S WEST’s fully regulated telecommunications service and are not regulated pursuant to Title 61, Idaho Code. Instead, the Commission finds that these services are only partially regulated by the provisions of Title 62, Idaho Code, and are frequently identified as “Title 62 services.” Therefore, the Commission’s authority is limited.
I. THE COMMISSION HAS JURISDICTION TO CONSIDER PETITIONERS’ CLAIMS.
While jurisdiction is generally presumed to exist, the threshold question in any Commission proceeding is whether the Commission has the requisite authority to decide the issue and grant the relief requested. If the Commission does not have the jurisdiction, the Petition must be dismissed. Although all the parties agree the Commission has jurisdiction, that is not dispositive. Neither the parties nor the Commission can confer jurisdiction on the Commission. Arrow Transp. Co. v. Idaho Pub. Utils. Comm'n, 85 Idaho 307, 313, 379 P.2d 422, 425 (1963); White v. Marty, 97 Idaho 85, 87-88, 540 P.2d 270, 272-73 (1975).
The facts clearly establish that these services are being provided to the Petitioners under Title 62 and, therefore, the Commission’s authority is limited. However, after carefully reviewing the facts, the allegations, case law and statutes, it is clear that the Commission does have the jurisdiction to consider the claims made by the Petitioners in both counts.
The Commission has statutory authority to investigate and resolve complaints made by subscribers to Title 62 services offered under filed price lists. Idaho Code § 62-616. The record establishes that the Petitioners are subscribers of Title 62 services. Further, while this Petition is characterized as a Petition for Declaratory Judgment, the essential allegation arises under U S WEST’s Price List for Title 62 services filed in 1993. Therefore, the Commission concludes that it clearly has the requisite authority to adjudicate the Petitioners’ claims because both counts arise from Title 62 services offered and priced in the Price List.
In this case, all the relevant facts are uncontested and the claims present questions of law. Therefore, no further evidentiary proceedings are necessary and the Commission can adjudicate both claims without further hearings.
II. COUNT I.
In Count I, the Petitioners do not contend that U S WEST is charging them different prices than those offered in the Price List or that U S WEST is modifying the services offered thereunder. They admit that the charges for services and facilities billed to them conform to those offered in the Price List. In fact, their complaint is that they are being charged exactly what is listed in the Price List. They request the Commission examine those rates and order U S WEST to remove them. The Commission finds that Idaho Code § 62-616 very specifically limits the Commission’s authority to adjudicate claims regarding price listed activities to “whether price and conditions of service are in conformance with filed tariffs or price lists.” Idaho Code § 62-616. Given the admission that the rates charged and the conditions for service are in conformity with the Price List, it would seem that the Commission must rule in U S WEST’s favor.
The Petitioners argue that “[i]t is not reasonable to assume that the Legislature specifically required the filing of tariffs or price lists without intending that those tariffs or price lists would be subject to scrutiny by the Commission and that the Commission did not have the ability to determine whether the charges were or were not just and reasonable.” Petitioners’ Initial Brief at 9; Tr. 4:7-5:6. However, that is precisely what the Legislature intended. As the Commission decided in Case No. GNR-T-94-1:
[A] distinction must be made between Title 61 tariffs and Title 62 price lists. Title 61 companies submit “tariffs” for those telecommunications services that are fully regulated under the Commission’s Title 61 jurisdiction. Title 62 companies submit “price lists” for telecommunications services that are not subject to the Commission’s ratesetting authority. Idaho Code § 62-604. Title 61 tariffs are “approved” by the Commission but Title 62 price lists are merely accepted for filing” once they meet the minimum filing qualifications such as form, public notice requirements, or averaging requirements for MTS. Idaho Code §§ 62-606 and -607. “Accepting” price lists for filing is a ministerial function that should not and does not imply Commission approval of the service or rates.
Order No. 25933 at 13. The 1988 Telecommunications Act codified in Title 62 permitted LECs to remove certain services from the Commission’s traditional rate setting authority found in Title 61.
The only way the Commission may reach the rates in the underlying Price List and rule that provisions in the Price List are void or illegal is if there is some other legal basis for the Commission to evaluate those terms. Where a price list is filed pursuant to Idaho Code § 62-606 and the services described therein are not regulated Title 61 services, potentially only two statutes may provide a basis for the Commission to directly investigate the provisions of a price list and require inappropriate provisions be changed – Idaho Code § 62-605(5) or Idaho Code § 62-615(1).
A. Idaho Code § 62-605(5) (“clawback”) does not provide a basis for the Commission to invalidate the terms or rates for items on the U S WEST Title 62 Price List.
Staff suggests that the Commission could exert authority over the terms, conditions or prices for Title 62 services, if there were grounds for the Commission to reassert regulatory authority pursuant to Idaho Code § 62-605(5), sometimes referred to as the “claw-back” provision. Idaho Code § 62605(5) gives the Commission continuing authority to review the quality, general availability, and terms and conditions of Title 62 telecommunication services that were previously regulated under Title 61. In particular, subsection (5) states:
For any telecommunication service which was subject, on the effective date [July 1, 1988] of this act, to title 61, Idaho Code, and which at the election of the telephone corporation became subject to this chapter, the commission shall have continuing authority to review the quality of such service, its general availability, and terms and conditions under which it is offered. Upon complaint to the commission and after notice to the telephone corporation providing such service and hearing, the commission finds that the quality, general availability or terms and conditions for such service are adverse to the public interest, the commission shall have authority to negotiate or require changes in how such telecommunication services are provided. In addition, if the commission finds that such corrective action is inadequate, it shall have the authority to require that such telecommunication services be subject to the requirements of title 61, Idaho Code, rather than the provisions of this chapter.

Idaho Code § 62-605(5) (emphasis added).
Staff argues that this statute, however, does not provide the Commission with the requisite authority to review the Price List terms and rates for these services and facilities because “[t]here is no evidence that the ‘quality, general availability or terms and conditions for such service [the services at issue] are adverse to the public interest.’” Petitioners respond that the Commission should exercise authority because it is in the public interest to void what they contend are “illegal” price listed items. The Commission rejects this argument because it finds that every person should pay the fair costs for receiving service or having facilities dedicated to that individual’s use. The Commission finds that endorsing the Petitioners’ position – providing free dedicated facilities and services to anyone – is not in the public interest and may be potentially unconstitutional. It is not in the public interest to allow pager customers free use of the U S WEST network facilities and then expect other customers to shoulder the expenses of the dedicated pager facilities. Therefore, if these price listed items were previously regulated as Title 61 services, the Commission finds that there would be no basis upon which to return them to regulation under Idaho Code § 62-605(5) because charging for these services is clearly not adverse to the public interest.
Nonetheless, the Commission also notes that U S WEST contends there is another ground for rejecting the assertion of authority pursuant to Idaho Code § 62-605(5). U S WEST alleges that these items were not previously regulated as Title 61 services. Because the Commission rules that Idaho Code § 62-605(5) does not provide a basis for the Commission to review the Price List items at issue and, therefore, a basis to rule on their propriety, the Commission finds it does not have to reach the issue of whether these items were previously regulated as Title 61 services.
B. Idaho Code § 62-615(1) does not allow the Commission to directly regulate the services at issue in the U S WEST Price List.
All parties maintain that Idaho Code § 62-615(1) specifically authorizes the Commission to implement the Federal Telecommunications Act of 1996. The Commission agrees. Petitioners argue that Idaho Code § 62-615(1) authorizes the Commission to find the Price List provisions void because it “incorporates applicable federal law.” Petitioners’ Initial Brief at 9. However, the Commission disagrees with the Petitioners’ contention.
This statute declares the Legislature’s intent that the Commission act in accordance with “applicable” federal law. It does not incorporate federal law. It does not override existing Idaho statutory law and does not make the Commission the “handmaiden” of the FCC. It only allows the Commission to implement those portions of the Federal Telecommunications Act of 1996 that specifically delegate or recognize state Commission authority to act. It does not require the Commission to enforce FCC rules or actions independent of a specific statutory delegation to the Commission or recognition of existing Commission authority. The Commission agrees with Staff that there are many FCC rules on such things as “advanced services,” “broadband services,” tower sitings, cable TV, or pornography and they have not been engrafted into state law.
Therefore, the Commission must decide whether the federal Act delegated or recognized some specific state Commission authority to review these items. Petitioners direct the Commission’s attention to Sections 251 and 252 of the federal Act.
The Commission finds that the provisions in the U S WEST Price List at issue directly concern the pricing of certain network elements that the Petitioners can purchase in order to interconnect with the U S WEST network. The Petitioners argue that Sections 251 and 252 of the federal Act and 47 CFR  Part 51, Subpart H (regulating reciprocal compensation) and the FCC Common Carrier Bureau Chief’s “interpretation” of those regulations, require the Commission void these Price List provisions and order U S WEST to give the Petitioners free dedicated facilities. The Commission agrees with Staff that Petitioners’ reliance is misplaced.
Sections 251 and 252 of the federal Act do not delegate authority to the Commission to void these items in U S WEST’s Price List or require the Commission to so act. These sections must be read together and do not operate independently of each other.
Relevant to this case, Section 251 requires U S WEST to allow paging companies to interconnect directly or indirectly with its facilities and equipment and to establish reciprocal compensation for the transport and termination of traffic. 47 U.S.C. §§ 251(a)(1) and (b)(5). Reciprocal compensation is not at issue here; it is the purchase of facilities dedicated to the paging companies’ use – the network elements. Where interconnection requires dedication of certain facilities to advance interconnection, like here, U S WEST can fulfill its statutory obligation to allow interconnection in one of two ways. It can either allow the Petitioners’ to physically locate their own equipment necessary for interconnection at U S WEST’s premises or provide access to unbundled network elements. The price listed items apparently are those network elements necessary to allow the Petitioners to interconnect with U S WEST’s network and to receive messages from the U S WEST network to Petitioners’ customers. The Petitioners ignore the fact that while the federal statute imposes an obligation on U S WEST to provide them access to facilities and equipment, it specifically does not require U S WEST to provide them for free.
. . . to provide, for the facilities and equipment of any requesting, interconnection with the local exchange carrier's network. . . on rates, terms, and conditions that are just, reasonable, and nondiscriminatory, in accordance with the terms and conditions of the [interconnection] agreement and the requirements of this section and section 252.

47 U.S.C. § 251(c)(2)(D) (emphasis added). Indeed, Congress cannot impose an obligation to make private property available for another’s use without compensation.
The Commission finds that the items contained in the disputed Price List are those facilities and equipment necessary to allow the Petitioners to interconnect with the U S WEST network. The Commission finds that Congress intended, as is constitutionally required, that these facilities and equipment be provided on “rates, terms, and conditions that are just, reasonable, and nondiscriminatory.” Congress did not say they should be provided free of charge. Certainly, Congress cannot and has not specifically authorized the Idaho Commission to impose interconnection responsibilities free of charge. Moreover, the Commission finds that this section makes clear that such prices should be set in accordance with interconnection agreements negotiated or arbitrated between the LEC and the party seeking interconnection pursuant to Section 252. See 47 U.S.C. § 251(c)(1). This duty to negotiate an agreement is critical and directly ties both Sections 251 and 252 of the federal Act together. Section 252 controls and limits the Commission’s role with respect to the items (the prices of certain network elements) at issue in the Price List.
Congress also made clear that once an incumbent LEC (ILEC) like U S WEST receives a request for interconnection, services, or network elements pursuant to Section 251, it may negotiate and enter into a binding agreement with the requesting telecommunications carrier without regard to the standards set forth in subsections (b) and (c) of Section 251 or it may request arbitration or mediation. 47 U.S.C. § 252(a)(1). Such an agreement must include a detailed schedule of itemized charges for interconnection and each service or network element included in the agreement.
The FCC rules likewise exempt negotiated agreements from compliance with the requirements of 47 CFR Part 51. 47 C.F.R. § 51.3. See also 47 U.S.C. § 252(a)(1). This includes the FCC rule, 47 C.F.R. § 51.703(b), which Petitioners allege makes U S WEST’s charges for these facilities void as illegal. Therefore, it is clear that while the Metzger letter may affect the arbitration of interconnection agreements, it clearly does not affect either price listed terms or negotiated interconnection agreements.
In other words, both Congress and the FCC recognized that parties may negotiate terms, prices and conditions that do not comply with either the FCC rules or with the provisions of Section 251(b) or (c). Therefore, to the extent the Metzger letter correctly interprets the law, it only applies to arbitrated agreements. The Petition arises from purchases made from the U S WEST Price List and does not derive from an arbitrated agreement. Petitioners behave as though the FCC regulations and Metzger letter stand alone and act to give them the benefit on an interconnection agreement without negotiating one. The Price List in question is not an interconnection agreement; it simply sets forth the prices for ordering certain network elements necessary for interconnecting with the U S WEST network and allows parties to purchase items from it. The Petitioners voluntarily ordered facilities and services from the Price List. The Metzger letter does not in and of itself make these charges illegal or improper. It simply does not apply to Price Lists. Furthermore, even if it did, nothing in state law authorizes this Commission to enforce the FCC rule.
Fundamentally, the Petitioners want to have the benefits provided by an interconnection agreement negotiated or arbitrated pursuant to Section 252 without following the procedures outlined therein. They seem to believe that the FCC rules operate to directly modify existing price lists or tariffs. The Commission finds that the FCC rules only operate within the arbitration process. Furthermore, the FCC rules cannot impose an independent duty on the state Commission to enforce them. The Commission exercises limited jurisdiction and it has no authority other than that expressly granted to it by the Legislature. Alpert v. Boise Water Corporation, 118 Idaho 136, 140, 795 P.2d 298, 302 (1990). Therefore, such authority must be specifically identified in the state statutes. Neither the FCC nor Congress can impose such a duty on the Commission.
Therefore, because there is no independent delegation to the Commission under state law to enforce the Metzger letter or its progeny, Idaho Code § 62-615(1) does not operate in this instance to enlarge the Commission’s authority by permitting it to directly regulate the pricing elements within the U S WEST Price List at issue and, ultimately, to order U S WEST provide the dedicated facilities for free to Petitioners.
Based on the law, the Commission dismisses this count.
II. COUNT II.
Petitioners’ rely on Section 252(i) (47 U.S.C. § 252(i)) as a basis for recovery of alleged overcharges “over and above any terms, conditions and rates provided to any other CMRS provider.” Petitioners’ Initial Brief at 5. Once again their reliance is misplaced.
Section 252(i) only applies to existing interconnection agreements. More specifically, it says:
A local exchange carrier shall 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.

This is the so-called “pick and choose” rule allowing telecommunications carriers to opt into provisions of existing interconnection agreements. The Commission finds that Petitioners have not identified interconnection agreements that offer rates or terms they wish to use. Therefore, the Commission finds that Section 252(i) does not apply.
Like in Count I, the Commission finds Petitioners are trying to equate terms in some interconnection agreements to the Price List items. In order to obtain the benefits of Section 252(i), the Petitioners must attempt to opt into existing interconnection agreements by negotiation, mediation or arbitration. PageData and Radio Paging have done just that.
Interestingly, while Petitioners suggest their purchases pursuant to the Price List are subject to contract law, they ignore its implications. The Commission agrees that contract law applies. Moreover, because the Commission has rejected the Petitioners’ argument that the price listed items are not illegally priced, the Petitioners are bound by their purchases under the Price List. Assertions of contractual illegality belong in District Court.
The fact they believe that there may have been “discrimination” (outside an interconnection agreement) does not mean they should be reimbursed for “overcharges.” Even if they had proof of the discriminatory arrangements they claim exist, it would only mean that the practice was unlawful -- it would not mean they would get the same “deal.” If a utility offers services at discriminatory prices and there are no valid considerations for rate differentiation, the remedy is to order the utility to follow its tariff. There is no basis to provide the relief requested by the Petitioners. Therefore, the Commission dismisses the allegations in Count II.
O R D E R
IT IS HEREBY ORDERED that Count I and Count II are dismissed and the declaratory judgment request is denied.
THIS IS A FINAL ORDER. Any person interested in this Order (or in issues finally decided by this Order) or in interlocutory Orders previously issued in this Case No. USWT9924 may petition for reconsideration within twentyone (21) days of the service date of this Order with regard to any matter decided in this Order or in interlocutory Orders previously issued in Case No. USWT9924. Within seven (7) days after any person has petitioned for reconsideration, any other person may crosspetition for reconsideration in response to issues raised in the petition for reconsideration. See sections 61626 and 62-619, Idaho Code.

DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho, this
day of July 2000.

DENNIS S. HANSEN, PRESIDENT

MARSHA H. SMITH, COMMISSIONER

PAUL KJELLANDER, COMMISSIONER

ATTEST:

Myrna J. Walters
Commission Secretary

O:uswt9924_cc6
Section 20, “Facilities for Radio Carriers,” Title 62 Catalog for U S WEST.

The Commission’s traditional regulatory authority is found in Title 61 of the Idaho Code. The Idaho Telecommunications Act of 1988 added a new chapter to Title 62 of the Idaho Code and created a modified form of regulation for telephone companies providing other than basic local exchange services in Idaho. Basic local exchange service for residential and small business customers with five or fewer lines remains under the Commission’s Title 61 ratesetting authority. In March 1989, U S WEST elected to remove its non-basic local services from the Commission’s Title 61 ratesetting authority. These non-basic services provided in southern Idaho are now subject to the Commission’s Title 62 jurisdiction.
The record is unclear whether these services were previously regulated under Title 61. U S WEST stated during oral argument and in its Reply Brief that these services were not previously regulated under Title 61. Staff maintains they were. In addition, the Commission notes that U S WEST seemed to indicate that facilities for interconnection for paging companies had been traditionally offered under Section 20 of its Basic Local Exchange Tariff or Title 61 Tariff. U S WEST Initial Brief at 3.
“The commission shall have the authority to investigate and resolve complaints made by subscribers to telecommunication services which are subject to the provisions of this chapter . . . whether price and conditions of service are in conformance with filed tariffs or price lists, . . . . The commission may, by order, render its decision granting or denying in whole or in part the subscriber's complaint or providing such other relief as is reasonable based on the evidence presented to the commission at the hearing. . . .” Idaho Code § 62-616.

There is good reason to file price lists for services that are not rate regulated. Pursuant to Idaho Code § 62-616, a subscriber can complain to the Commission for the failure to follow those price lists and obtain relief. Indeed, the Commission receives hundreds of customer inquiries each year seeking to know whether they were charged rates in conformance with the price lists on file with the Commission.
The legality argument will be addressed below.

“The commission shall have full power and authority to implement the federal telecommunications act of 1996, including, but not limited to, the power to establish unbundled network element charges in accordance with the act.” Idaho Code § 62615(1).
Pursuant to the FCC rules, 47 CFR §  1.102(b), such actions are effective upon their release. The “Metzger” letter was issued after notice and comment, including comments by U S WEST. See also 47 CFR § § 0.291 and 0.91.
The agreement is then submitted to the state Commission for review and approval and the Commission’s involvement is strictly limited by Section 252. 47 U.S.C. § 252 (e)(1). The Commission may reject an agreement adopted by negotiation only if it finds that the agreement discriminates against a telecommunications carrier not a party to the agreement or implementation of the agreement is not consistent with the public interest, convenience and necessity. 47 U.S.C. § 252 (e)(2)(A). The Commission’s decision is not reviewable by the state courts. 47 U.S.C. § 252 (e)(4).

“To the extent provided in section 252(e)(2)(A) of the Act, a state commission shall have authority to approve an interconnection agreement adopted by negotiation even if the terms of the agreement do not comply with the requirements of this part.” 47 C.F.R. §  51.3.
See also Washington Water Power Co. v. Kootenai Environmental Alliance, 99 Idaho 875, 591 P.2d 122 (1979); 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.2d 753 (1977); Arrow Transp. Co. v. Idaho Pub. Utils. Comm'n, 85 Idaho 307, 379 P.2d 422 (1963).

ORDER NO. 28427 -1-

Office of the Secretary
Service Date
July 5, 2000