20000324Brief on Jurisdiction.doc

CHERI C. COPSEY
DEPUTY ATTORNEY GENERAL
IDAHO PUBLIC UTILITIES COMMISSION
PO BOX 83720
BOISE, IDAHO 83720-0074
[phone]
IDAHO BAR NO. 5142

Street Address for Express Mail:
472 W. WASHINGTON
BOISE, IDAHO 83702-5983

Attorney for the Commission Staff

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

COMMISSION STAFF BRIEF ON JURISDICTION

COMES NOW the Commission Staff of the Idaho Public Utilities Commission, by and through its attorney of record, Cheri C. Copsey, Deputy Attorney General, and in response to the Notice of Change in Briefing Schedule issued on February 7, 2000, as modified by Order No. 28314, submits the following memorandum concerning whether the Commission has jurisdiction to decide the issues raised by the Petitioners. Order Nos. 28281 and 28314.
The Petitioners have stated two counts for relief in the Petition. First, in Count I, the Petitioners allege that the Telecommunications Act of 1996 (47 U.S.C. §§ 153 et seq.) preempted certain charges found in the U S WEST Communications, Inc.’s Price List for Title 62 services and, therefore, entitles the Petitioners to require that certain U S WEST facilities be dedicated to their use free of charge. Based on this alleged preemption, they request the Commission declare portions of U S WEST’s Price List for Title 62 services void. They further request recovery for any amounts paid U S WEST for purchases under that Price List made from September 1996 through the time each Petitioner entered into a Type I Paging Connection Agreement.
Count II alleges that Petitioners “are informed and believe” that U S WEST has offered or provided other paging companies more favorable terms, conditions or rates than have been offered them “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. No discovery has been undertaken.
After carefully reviewing the facts, the allegations, case law and statutes, it is clear that the Commission does have the jurisdiction to consider the issues raised by the Petitioners in both counts. Therefore, the Staff requests the Commission find that it has jurisdiction to decide the issues. However, it is also clear that based on the Petitioners’ factual allegations, the Petitioners’ relief with respect to Count I should be denied and declaratory judgment issued in U S WEST’s favor.
With respect to Count II, Section 252(i) of the federal Telecommunications Act of 1996 (47 U.S.C. § 252) does not apply to U S WEST’s Price List and, therefore, is not the basis for relief. Moreover, to the extent that the claim for relief may derive from some other Commission authority, even assuming all claims in Count II are true, the relief sought is not available and Count II should be dismissed with prejudice.
PROCEDURAL BACKGROUND
On September 24, 1999, Robert Ryder dba Radio Paging Service, Joseph McNeal dba PageData and Interpage of Idaho filed a Petition for Declaratory Order alleging that the dedicated transport and channel facilities charges for Commercial Radio Service Providers (CMRS) in U S WEST’s Title 62 Price List are preempted by Federal Communications Commission rules (47 C.F.R. § 51.703) and interpretation. They request the Commission find that those rules prohibit U S WEST from charging them, or any other paging service, for the cost of U S WEST’s transmission facilities being used on a dedicated basis to deliver local traffic that originated on U S WEST’s network to them. They further request the Commission order U S WEST to reimburse all CMRS providers for these alleged overcharges. They do not allege that U S WEST failed to follow the Price List on file with the Commission.
On December 20, 1999, the Commission ordered the parties to brief the issue of whether the Commission has jurisdiction to decide the issues raised by the Petitioners in the Petition. The Commission ordered opening briefs be filed January 24, 2000, and reply briefs due February 7, 2000. Order No. 28235. On January 24, 2000, Tel-Car, Inc. filed a Petition to Intervene which was granted February 9, 2000. Order No. 28282. The parties filed opening briefs on January 24, 2000, and all parties argue that the Commission has jurisdiction to decide the Petition for Declaratory Judgment.
After briefly reviewing the parties’ opening briefs, the Commission ordered the Staff to file a brief on March 21, 2000, concerning the Commission’s jurisdiction to decide these issues. Order No. 28281. In addition, the Commission changed the date for the parties to file simultaneous reply briefs to April 4, 2000. On March 20, 2000, Commission Staff filed a motion for an extension of time within which to file its brief pursuant to Rule 256 and on March 23, 2000, the Commission granted the extension. Order No.  28314. Pursuant to that Order, Commission Staff Brief is due Friday, March 24, 2000, and Reply Briefs are due April 7, 2000.
FACTUAL BACKGROUND
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. In other words, their paging customers only receive calls but do not initiate calls to customers on U S WEST’s network. With one-way paging, when a caller dials a paging customer, the call is initially transported on the LEC’s network, then handed off to the paging carrier for ultimate delivery to the called party. As the Colorado Public Utilities Commission observed:
A paging service exists for one reason only, namely to enable paging customers to be contacted by specific individuals to whom the number has been given. It is, therefore, the provider of paging services . . . who is the cost-causer [sic].

In the Matter of the Petition of Airtouch Paging, Inc., for Arbitration of an Interconnection Agreement with U S WEST Communications, Inc. pursuant to 47 U.S.C. § 252, Decision Regarding Petition for Arbitration, adopted April 23, 1999, pages 9-10, fn. 7.
The interconnection and transmission of calls from LEC customers to the paging company requires 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 Idaho’s Telecommunications Act of 1988 became law, U S WEST filed an election in 1989 to remove certain services, including these services, from Title 61 regulatory authority. See Case No. MTB-T-89-1; Order No. 22552. This Price List is part of U S WEST’s Exchange and Network Catalog (commonly called the “Title 62 Catalog”) filed with the Commission in 1993 after that election. While these services were initially part of the U S WEST Title 61 Tariff and had been previously regulated by the Commission, they are no longer part of U S WEST’s fully regulated telecommunications service pursuant to Title 61, Idaho Code. Instead, these services are only partially regulated by the provisions of Title 62, Idaho Code and LECs are required to file tariffs or price lists which reflect the availability, price, and terms and conditions for those services for information purposes only. Idaho Code §  62-606. This particular Price List was filed with the Commission pursuant to Idaho Code §  62-606 in 1993.
The Petitioners allege that they have all purchased interconnection facilities (unbundled network elements) pursuant to the Price List for some period of time since September 1996. PageData and Radio Paging have negotiated Interconnection Agreements pursuant to Sections 251 and 252 of the federal Telecommunications Act of 1996 and no longer purchase these network elements under the Price List. They are seeking reimbursement for charges made 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. Order No. 28139. Radio Paging’s Interconnection Agreement was approved May 13, 1999. Order No.  20832. InterPage and Tel-Car apparently are still purchasing services from the Price List. They all 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, they all contend that these services and dedicated facilities must be provided to them free of charge.
ARGUMENT
The paging company’s customers effectively instigate all calls that must be transported over the LEC’s network to them. Without calls sent to the paging network, paging services would not exist. In order to interconnect and transport calls to the paging customers, facilities must be dedicated to the paging company’s use. Some must actually be constructed. Therefore, clearly the paging company and its customers cause the LEC (in this case, U S WEST) to incur the costs associated with the facilities dedicated to the paging interconnection. However, the Petitioners are demanding that they be provided with free dedicated facilities. They claim that federal law requires this Commission to order U S WEST to provide those facilities dedicated to their use for free. Moreover, they also claim that U S WEST has violated Section 252(i) of the federal Telecommunications Act of 1996.
It is against that backdrop that the Petition and each Count should be analyzed.
I. COUNT I SHOULD BE DISMISSED WITH PREJUDICE.
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. The Commission has requested the parties to analyze whether it has the authority to consider the Petition.
Although the parties have both asserted 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), quoting 42 Am.Jur. 440, § 109; White v. Marty, 97 Idaho 85, 87-88, 540 P.2d 270, 272-73 (1975); Wayne v. Alspach, 20 Idaho 144, 116 P. 1033, 1034 (1911). The Commission exercises limited jurisdiction and nothing is presumed in favor of its jurisdiction; 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 statutes.
A. The Commission has jurisdiction to consider the Petition pursuant to Idaho Code § 62616.

The Commission has authority to investigate and resolve complaints made by subscribers of Title 62 services offered and rendered under filed tariffs or price lists where the complaint concerns “whether the price and conditions of service are in conformance with filed tariffs or price lists.” Idaho Code § 62-616. The Petitioners allege they are subscribers. Further, while this Petition is characterized as a Petition for Declaratory Judgment, the essential allegation arises under the Price List filed in 1993. Therefore, the Commission clearly has authority to consider the Petitioners’ complaint because it arises from Title 62 services offered and priced in the Price List.
However, that does not end the inquiry. According to the Petition allegations, the Petitioners do not contend that U S WEST is charging them different prices than those in the Price List or modifying the services offered. They admit that the charges and services are in conformity with the Price List. Given the admission that the rates charged are in conformance with the Price List, it would seem that the Commission’s inquiry is at an end, unless there is some basis for the Commission to exert authority over the rates in the underlying Price List and rule that provisions in the Price List are void or illegal.
Where a price list is filed pursuant to Idaho Code § 62-606 and the services described therein are not regulated Title 61 services, only two statutes potentially may provide a basis for the Commission to directly examine the provisions of a price list and require inappropriate provisions be changed – Idaho Code § 62-605(5) or Idaho Code § 62-615(1). As discussed below, under either law, the Commission cannot find the Price List provisions void.
B. These services are not regulated under Title 61 and thus the prices are not directly regulated by the Commission.

Petitioners’ arguments justifying the relief they request are based on a fundamental error. They begin their analysis with Idaho Code § 61-501 and the rest of Title 61. But these services are not subject to Title 61 regulatory authority.
This Price List was filed pursuant to Idaho Code § 62-606. The Petitioners fail to grasp the significance of this fact. In relevant part, Idaho Code § 62-606 applies to Title 62 “telephone corporations which provide . . . access to their local exchange network for the provision of such services by the use of special access . . . and switched access.” That is precisely the Title 62 service being offered here. Idaho Code § 62-606 limits the Commission’s authority to simply receiving a copy of the Price List or price list by requiring those LECs to “file with the commission, for information purposes, tariffs or price lists which reflect the availability, price, and terms and conditions for those services.”
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. However, that is precisely what the legislature intended. Petitioners ignore Idaho Code §§ 62-604 and 62-605 (enacted at the same time as Idaho Code § 62-606) which allow Title 61 regulated LECs to “elect to exclude its telecommunication services, other than basic local exchange service . . . from regulation pursuant to title 61, Idaho Code. . . .” Petitioners ignore the fact that these services were excluded from Title 61 regulation and the implications that stem from that exclusion. See Case No. MTB-T-89-1; Order No. 22552.
C. These services are only subject to minimal Commission regulatory oversight unless the Price List is shown to be adverse to the public interest as required by Idaho Code § 62-605(5).

Analysis of Petitioners’ request is complicated by the fact that the services the Price List in question covers are Title 62 services. The Commission’s traditional, rate setting regulatory authority is found in Title 61. However, the Idaho Telecommunications Act of 1988 added a new chapter to Title 62 and created a modified form of regulation for telephone corporations providing services other than basic local exchange service. Under the 1988 Act, a LEC, such as U S WEST, is given a choice. The LEC can continue to have all its telecommunication services regulated by the Commission under Title 61 or it may elect to remove its non-basic telecommunication services from traditional Title 61 regulation making them subject to the provisions found in Title 62. The services at issue in this proceeding were removed from Title 61 regulation in 1989. See Case No. MTB-T-89-1; Order No. 22552. Therefore, the Commission does not exercise approval authority over the price list; it is filed “for information purposes only.” Idaho Code §  62-606. As the Commission decided in Case No. GNR-T-94-1 and wrote:
[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.
In order for the Commission to exert authority over the terms, conditions or prices covered by a Price List for Title 62 services, the Commission would have to rely on Idaho Code § 62-605(5), sometimes referred to as the “claw-back” provision.
Idaho Code § 62-605(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).
While on its surface, this statute may seem applicable, there is one major flaw. There 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.” To the contrary, it is in the public interest to require all persons, including paging companies, to pay for the services and dedicated facilities they use. Some may argue that there are some free services (TRS or time of day), but in reality, these services are supported by all customers based on compelling public interests. The Petitioners’ position – demanding free dedicated facilities and services – is not in the public interest. Every person should pay the fair costs for receiving service or dedicating facilities for that individual’s use. To suggest that those services and dedicated facilities should be provided free is inherently unreasonable.
Moreover, any attempt to order a company to provide service or occupy its property for the use of another without compensation raises serious constitutional questions. The Fifth Amendment to the United States Constitution clearly prohibits the federal government from taking any action that causes the physical occupancy or invasion of private property. See Loretto v. Teleprompter Manhatten CATV Corp., 458 U.S. 419, 441 (1982). The Fourteenth Amendment to

the United States Constitution and Idaho Constitution, Article 1, §§ 13-14, likewise preclude the states from taking private property without compensation.
If the Commission acceded to the Petitioners’ request and ordered the requested relief, it would be ordering U S WEST to make its property and services available to the Petitioners for free and this is an unconstitutional takings. Even the federal Telecommunications Act of 1996 cannot justify requiring an ILEC to make its property available for use by another without compensation. See GTE Service Corporation v. Federal Communications Commission, Nos. 99-1176 & 99-1201 (D.C. Cir. March 17, 2000) (2000 WL 255470). Moreover, such action also implicates potential liability for the Commission under 42 U.S.C. § 1983 et seq. which at a minimum authorizes injunctive relief for the violation of constitutional rights.
D. Idaho Code § 62-615(1) does not allow the Commission to directly regulate the services at issue in the U S WEST Price List.

As U S WEST argues, Idaho Code § 62-615(1) specifically authorizes the Commission to implement the federal Telecommunications Act of 1996. That is true. However, this is not as broad a mandate as U S WEST implies. It does not override existing Idaho statutory law and does not make the Commission the “handmaiden” of the Federal Communications Commission (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. If that were the case, the Commission would be enforcing FCC rules on “advanced services,” “broadband services,” tower sitings, video, or pornography. Therefore, to the extent Idaho Code § 62-615(1) expands the Commission’s authority, there must be some direct or explicit recognition or delegation found in the federal Telecommunications Act of 1996.
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. However, there are three additional concepts covered by the federal law, in addition to network elements, that are relevant to these provisions – reciprocal compensation, interconnection, and the duty to negotiate. The Petitioners argue that Sections 251 and 252 of the federal Act, 47 CFR  Part 51, Subpart H (regulating reciprocal compensation) and the FCC Common Carrier Bureau Chief’s “interpretation” (“Metzger” letter) of those regulations, require the Commission void these Price List provisions and order U S WEST to give the Petitioners free dedicated facilities. The Petitioners’ reliance is misplaced.
Petitioners misunderstand the interaction between Sections 251 and 252 and misunderstand the Commission’s role under those sections. They do not stand alone; they are interdependent. In order to fully understand the Commission’s role in the interconnection between telecommunications carriers (such as U S WEST as an incumbent LEC (ILEC)) and the Petitioners who are CMRS providers, it is important to review both sections carefully.
1. Section 251.
Section 251 imposes certain duties on all telecommunications carriers. One of those duties is that all telecommunications providers must allow interconnection “directly or indirectly with the facilities and equipment of other telecommunications carriers.” 47 U.S.C. § 251(a)(1). Telecommunications carriers that offer local exchange services (including ILECs) are also required to “establish reciprocal compensation arrangements for the transport and termination of telecommunications.” 47 U.S.C. §251(b)(5). (Note that the items in the Price List at issue do not concern reciprocal compensation even though the regulations relied on by the Petitioners only address the responsibilities for reciprocal compensation.)
ILECs have several additional duties. Where interconnection requires certain facilities to facilitate that interconnection, ILECs can fulfill their obligation to allow interconnection in one of two ways. They can allow the telecommunications carrier to physically locate equipment necessary for interconnection at their premises or provide access to unbundled network elements at their premises. ILECs are required to
. . . to provide, for the facilities and equipment of any requesting telecommunications carrier, 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 agreement and the requirements of this section and section 252.

47 U.S.C. § 251(c)(2)(D) (emphasis added). The items contained in the disputed Price List are those facilities and equipment necessary to allow the Petitioners to interconnect with U S WEST network. Note 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 would be free. Indeed, that would be unconstitutional. Moreover, this section makes clear that such prices should be in accordance with agreements negotiated or arbitrated pursuant to Section 252.
With respect to those agreements, ILECs have “[t]he duty to negotiate in good faith in accordance with section 252 the particular terms and conditions of agreements to fulfill the duties described . . . this subsection. 47 U.S.C. § 251(c)(1). This duty to negotiate an agreement is critical and directly ties to Section 252 of the federal act. The Commission’s role with respect to the items (the prices of certain network elements) at issue in the Price List is limited.
Once an ILEC receives a request for interconnection, services, or network elements pursuant to section 251, the ILEC 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. 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 agreement is then submitted to the Commission for review and approval and its involvement is strictly limited by Section 252.

2. Section 252.
Under the terms of the federal Telecommunications Act of 1996, interconnection agreements must be submitted to this Commission for approval. 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 telecommunication 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). If the Commission does not act to approve or reject the agreement within 90 days after its submission, the agreement is deemed approved. 47 U.S.C.  252 (e)(4). The Commission’s decision is not reviewable by the state courts. Id. Significantly, negotiated agreements do not have to comply with the requirements of 47 CFR Part 51 (including 47 CFR § 51.703(b)). 47 CFR § 51.3.
It is only when the parties cannot agree that the Commission takes a more active role. That role may take the form of mediation or arbitration. For example, any party attempting to negotiate an agreement may, at any point in the negotiation, ask the Commission to participate in the negotiation and to mediate any differences arising in the course of the negotiation. 47 U.S.C. § 252(a)(2).
During the period from the 135th to the 160th day after the date on which an ILEC receives a request for negotiation, the carrier or any other party to the negotiation may petition the Commission to arbitrate any open issues. 47 U.S.C. § 252(b)(1). The Commission is confined to those issues remaining disputed. 47 U.S.C. § 252(b)(4)(A). To the extent that pricing standards are at issue in the arbitration the Commission is required to “establish any rates for interconnection, services, or network elements according to subsection (d)” and it is at this point that Part 51 rules apply. 47 U.S.C. § 252(c). In other words, Part 51 rules direct state commissions to set interconnection and unbundled rate elements through arbitration and are not a substitute for a Price List or a price list.
Furthermore, the Commission’s authority to set prices for Title 62 [unbundled network elements] is confined to its authority to arbitrate interconnection agreements pursuant to Section 252. See First Report and Order, 11 FCC Rcd 15499 (1996) at ¶¶ 618-863. This is significant because the Petitioners are not requesting arbitration. They are acting as though the 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.
Therefore, because this is not an arbitration, Idaho Code § 62-615(1) does not operate in this instance to allow the Commission to directly regulate the pricing elements within the U S WEST Price List at issue and order U S WEST to provide the dedicated facilities for free.
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 existing Interconnection Agreements. The Petitioners have identified no interconnection agreements that offer rates or terms they wish to use. Therefore, Section 252(i) does not apply.
Like Count I, the 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 should attempt to opt into existing interconnection agreements by negotiation, mediation or arbitration.
Petitioners do not seem to accept the idea that because they purchased the facilities under the Price List, they are bound by the Price List. The fact they believe that there may have been “discrimination” (outside an interconnection agreement) does not allow them to be reimbursed for “overcharges.” Even if they had proof of such arrangements, it would only mean that the practice was unlawful but it would not give them the relief they seek. See AT&T v. Central Office Telephone, 524 U.S. 214, 226 (1999); United States v. Wabash R. Co., 321 U.S. 403, 413 (1944). Although, the case law all derives from the “filed rate doctrine” which is based on filed tariffs like those covering traditional Title 61 services, the rationale is the same. If a utility offers services at discriminatory prices and there is 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 should dismiss the allegations in Count II.
SUMMARY
Essentially, 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. They do not. They are not self-executing. They only operate within the arbitration process. The Commission should not allow them to get the benefits of an interconnection agreement without the responsibilities and should dismiss both counts.
Dated at Boise, Idaho, this 24th day of March 2000.

________________________
Cheri C. Copsey
Deputy Attorney General
Staff: Joe Cusick

M:uswt9924_cc2
Section 20, “Facilities for Radio Carriers,” Title 62 Catalog for U S WEST.
Apparently, the Petitioners argue that date of the enactment of the federal rules applicable to Interconnection, 47 CFR Part 51, is the date upon which U S WEST should have begun providing them with free interconnection facilities even though the so-called Metzger letter was not written until December 30, 1997.
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).

The Commission does not have authority to treat this as an inter-telephone corporation dispute pursuant to Idaho Code § 62-614 because CMRS providers are not “telephone corporations” under Idaho Code § 62603(14) providing “basic local exchange service.” Moreover, pursuant to 47 U.S.C. §332 and Idaho Code §§ 61-121 and 62-603, CMRS providers are generally exempt from Commission jurisdiction except as otherwise provided by statute.

Title 61 services are fully regulated by the Commission.

There is good reason to file price lists for services that are not fully 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.
“We affirm the traditional rule that a permanent physical occupation of property is a taking. In such a case, the property owner entertains a historically rooted expectation of compensation, and the character of the invasion is qualitatively more intrusive than perhaps any other category of property regulation.” Loretto at 4441.

U S WEST has challenged the FCC actions in the United States Court of Federal Claims. See U S WEST Communications, Inc. v. U.S., Case No. 99-140C. The matter is pending.

“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.”

Petitioners argue that Idaho Code § 62-602(5) authorizes the Commission to find the Price List provisions void because it “incorporates applicable federal law.” Petitioners’ Initial Brief at 9. However, the Petitioners are wrong. This is simply a general statute stating legislative intent that the Commission act in accordance with “applicable” federal law. It does not incorporate federal law.
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. Even U S WEST filed comments. See also 47 CFR § § 0.291 and 0.91.

“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 CFR § 51.3.

COMMISSION STAFF BRIEF
ON JURISDICTION -10-