20040402Order No 29463.pdf

Office of the Secretary
Service Date
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
April 2, 2004
IN THE MATTER OF PAGEDATA'S PETITION
FOR ARBITRATION OF INTERCONNECTION
RATES, TERMS AND CONDITIONS AND
RELATED ARRANGEMENTS WITH QWEST
CORPORATION PURSUANT TO SECTION 252(B))
OF THE FEDERAL TELECOMMUNICATIONS
ACT.
IN THE MATTER OF W A VESENT LLC'
PETITION FOR ARBITRATION OF INTER-
CONNECTION RATES, TERMS AND CONDI-
TIONS AND RELATED ARRANGEMENTS WITH)
QWEST CORPORATION PURSUANT TO SECTION 252(B) OF THE FEDERAL
TELECOMMUNICATIONS ACT.
CASE NO. GNR- T -04-
CASE NO. GNR- T -04-
ORDER NO. 29463
On March 23 2004, Joseph B. McNeal d/b/a PageData filed a Petition for Arbitration
requesting that the Commission arbitrate unresolved issues necessary to complete
interconnection agreement between PageData and Qwest Corporation. On March 25 2004, Mr.
McNeal on behalf of WaveSent LLC filed another Petition for Arbitration requesting the
Commission to arbitrate an interconnection agreement between WaveSent and Qwest. PageData
states that it is "a telecommunications carrier that provides CMRS services in Idaho.
PageData Petition at 2. For its part, WaveSent states that it is a Nevada LLC
telecommunications carrier that provides CMRS services in Idaho. WaveSent Petition at 2.
Both PageData and WaveSent (hereinafter referred to as the "Pagers ) maintain their primary
business offices at 6610 Overland Road, Boise, Idaho. For the most part, both Pagers raise
identical issues and seek identical remedies.
The Commission issues this procedural Order to consolidate these two cases. This
Order also addresses initial procedures to process these Petitions.
1 CMRS means Commercial Mobile Radio Service. Generally, CMRS carriers provide telecommunications services
such as cellular, paging, personal communications services (PCS), and specialized mobile radio services.
ORDER NO. 29463
THE FEDERAL INTERCONNECTION SCHEME
Congress enacted the federal Telecommunications Act of 1996 ("the Act"
promote competition in all telecommunication service markets. Under the Act, each
telecommunications carrier is required "to interconnect directly or indirectly with the facilities
and equipment of other telecommunications carriers." 47 U.C. ~ 251(a). Congress envisioned
that telecommunications carriers would enter into contracts or agreements that would contain the
rates, terms and conditions for interconnecting their networks. These agreements are commonly
referred to as "interconnection agreements.
In general, the federal Act contemplates that parties will enter into interconnection
agreements in one of three ways.
First, the Act requires that parties negotiate in good faith in an attempt to
voluntarily negotiate in Interconnection Agreement. Second, if parties are
unable to negotiate an agreement, either party may request binding arbitration
by a state utilities commission to resolve the (disputed) issues. To encourage
voluntary negotiations, a request for arbitration cannot be filed before the
1351h day or after the 1601h day from when the incumbent LEC receives a
request to negotiate an interconnection agreement.
Third, Section 252(i) of the Act requires that a LEC "make available any
interconnection service, or network element provided under an agreement
provided 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 section is commonly referred to as the
pick and choose" provision of the Act. Rather than constantly renegotiating
terms and conditions, Section 252(i) allows a requesting carrier in Idaho to
adopt expeditiously any term or condition of an interconnection agreement
previously approved by this Commission.
Order No. 29140 at 9 (footnote and internal citations omitted). In these Petitions the Pagers are
pursuing both the second and third alternatives.
THE PETITIONS
The Pagers petition this Commission to arbitrate approximately 30 unresolved
interconnection issues. They also propose to adopt several "pick and choose" terms from other
interconnection agreements previously approved by the Commission. More specifically, the
Petitions identify the following issues.
2 Pub. L. No. 104-104, 110 Stat. 56 (1996) (codified in scattered sections at 47 US.c. 99 291(b), 251 et seq.
ORDER NO. 29463
1. Arbitration Issues . The unresolved issues identified by the Pagers include: is
continuous paging" an enhanced telecommunications service; shall Qwest certify that it has
filed all applicable interconnection agreements in Idaho; is it appropriate to restrict the filing of
arbitration petitions until the 1351h day; which carrier is responsible for the payment of "transit
traffic ; flat rate billing of services; the impounding of disputed reciprocal compensation; the
payment of lost profits or compensatory damages; referring disputed resolution matters to small
claims court; and other issues. See Petitions Exhibit B, Matrix of Unresolved Issues.
2. Adoption of Terms Under Section 252(i). In their Petitions, the Pagers indicate
that they wish to adopt (pick and choose) terms and conditions from other interconnection
agreements previously approved by this Commission. In particular, the Pagers desire to adopt
terms and conditions from the BridgeBand and XO Idaho Interconnection Agreements
concerning the submittals of "access service requests" (ASRs). Petitions at 7, nn. 4 and 5.
Second, the Pagers also desire to adopt conditions regarding dispute resolution procedures
(including access to Company vice presidents) contained in the BridgeBand and XO Idaho
agreements. Next, the Pagers propose to adopt terms and conditions from the Verizon Wireless
Interconnection Agreement for the exchange of Internet service provider (ISP) - bound traffic.
Id. at 7-8; Exhibit C.
PageData and WaveSent state that they submitted their requests to initiate
interconnection negotiations to Qwest on March 16 and 18, 2004, respectively. Both Pagers
represent that they are currently operating under the Arch Paging Interconnection Agreement
adopted by the Pagers and Qwest pursuant to Section 252(i) of the Act and approved by this
Commission.
DISCUSSION
Because the PageData and WaveSent Petitions are almost identical and raise nearly
identical issues, we find that it is appropriate pursuant to Rule 247 to consolidate these Petitions
into a single proceeding.IDAPA 31.01.01.247. As set out in the Petitions, Mr. McNeal
represents both PageData and WaveSent. Consolidation will allow the parties, as well as the
Commission, to utilize their time and resources efficiently. The Commission finds that the
3 Exhibit C in both Petitions is the "Draft Interconnection Agreement" proposed by the Pagers. The Draft
Agreements denote the "Pick and Choose" terms that the Pagers propose for adoption pursuant to Section 252(i).
, see 99 2., 2.4, 2., 13.14, etc.
ORDER NO. 29463
issues raised in both Petitions are related and the rights of the parties will not be prejudiced by
consolidation.
As set out above, Section 252(b)(1) restricts arbitration petitions from being filed
with a state commission until the 1351h day from the date the Pagers forwarded their requests to
initiate negotiations with Qwest. The Pagers generally assert in their Petitions that Qwest has
acted in "bad faith" thereby allowing the Commission to "shorten" the 135-day waiting period.
Petitions at ~ 10. In particular, the Pagers allege that Qwest has "threatened to shut off (their)
facilities. .
. .
" Petitions at ~ 11. PageData also alleges that Qwest has prohibited access to 12 T-
trunks necessary for PageData s single point of presence (SPOP). PageData Petition at ~ 11.
The Pagers argue that Qwest's conduct allows them to petition this Commission to
arbitrate unresolved issues between the parties. Although any party may seek the mediation
assistance of a state commission, Section 252(b )(1) limits the filing of an arbitration petition to
no sooner than 135 days after the Pagers initiated negotiations with Qwest. In this instance the
1351h day would be approximately July 30, 2004. Despite this apparent filing restriction, the
Pagers have not provided any authority for their argument that the Commission may "shorten
this period.Consequently, we find that it is appropriate for the Pagers to provide the
Commission with any authority supporting their argument regarding this issue.
Because the Pagers seek to both arbitrate and to adopt terms from other
interconnection agreements, Qwest's response shall separately address the arbitration issues and
the adoption issues.
ORDER
IT IS HEREBY ORDERED that Case Nos. GNR-O4-5 and GNR-04-6 be
consolidated into a single proceeding pursuant to Rule 247, IDAP A 31.01.01.247.
IT IS FURTHER ORDERED that the Pagers provide the Commission with a citation
to any case, which purport to allow arbitration petitions to be filed prior to the 1351h day. The
Pagers shall provide these citations, if any, within ten days of the service date of this Order.
IT IS FURTHER ORDERED that Qwest file its consolidated response to these
petitions within 14 days of the service date of this Order. Qwest's response shall separately
address the Pagers unresolved arbitration issues and those terms that the Pagers desire to adopt
under Section 252(i) ofthe federal Act.
ORDER NO. 29463
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this ~ J.
day of April 2004.
P AU . ELL , PRESIDENT
MARSHA H. SMITH, COMMISSIONER
ATTEST:
fJ.Je D. JewellCo ission Secretary
vld/O:GNRT0405 GNRT0406 dh
ORDER NO. 29463