20020909_262.pdf

DECISION MEMORANDUM
TO:COMMISSIONER KJELLANDER
COMMISSIONER SMITH
CO MMISSI 0 NER HANSEN
JEAN JEWELL
DON HOWELL
JOHN HAMMOND
WELDON STUTZMAN
LISA NORDSTROM
RANDY LOBB
JOE CUSICK
CAROLEE HALL
DOUG COOLEY
BIRDELLE BROWN
LYNN ANDERSON
LOU ANN WESTERFIELD
RON LAW
TONYA CLARK
GENE FADNESS
WORKING FILE
FROM:JOHN HAMMOND
DATE:SEPTEMBER 6, 2002
RE:REVIEW OF AMENDMENTS TO EXISTING QWEST INTERCONNECTION
AGREEMENTS: CASE NOS. USW-99-3 (2 AMENDMENTS), QWE-00-13 (1
AMENDMENT), QWE- T -00- 7 (3 AMENDMENTS).
On August 21 , 2002, Qwest Corporation filed six negotiated agreements with the
Commission that it had previously made with McLeodUSA Telecommunications Services, Inc.
(three agreements), Eschelon Telecom, Inc. (one agreement) and Covad Communications
Company (two agreements). Qwest has filed these agreements in order to amend existing
interconnection agreements contained in Case Nos. QWE-00-, QWE-OO-13 and USW-
99-23. Qwest requests that the Commission approve these agreements as amendments to these
interconnection agreements as soon as reasonably practicable.
BACKGROUND
The negotiated agreements, filed as amendments to existing interconnection
agreements, have been of great interest in several states. Currently, there are proceedings in
DECISION MEMORANDUM
Iowa, Minnesota and New Mexico involving similar or the same agreements with these carriers
and whether they should be filed as interconnection agreements.l Qwest has also filed a Petition
for Declaratory Ruling with the Federal Communications Commission ("FCC") requesting that it
rule on the scope and duty to file and obtain prior approval of certain types of negotiated
contractual arrangements under 47 u.S.C. ~ 252. The FCC subsequently requested comments on
the question posed by the Qwest filing.
In its filing, Qwest claims it does not believe these contractual arrangements fall
within the filing requirements of Section 252, but also acknowledges that the standards of what
should be filed "have not been clearly defined." Qwest indicated it had implemented a new
policy and is now "broadly filing all contracts, agreements or letters of understanding between
Qwest Corporation and CLECs that create obligations to meet the requirements of Section
251 (b) or (c) on a going forward basis.In regards to agreements entered into prior to the
implementation of the new policy, Qwest indicated it is filing these contractual arrangements
now as a "sign of its good faith.
Qwest claimed the filed agreements are all of "currently effective agreements with
CLECs in Idaho that were entered into prior to adoption of the new policy. . that relate to Section
251(b) or (c) services on an on-going basis that have not been terminated or superceded by
agreement, commission order, or otherwise.
Qwest requested the Commission "simply approve those prOVlSlons relating
Section 251 (b) or (c) services under its Section 252( e) procedures, and Qwest will make all the
going forward provisions related to Section 251(b) or (c) available under Section 251(i)." Qwest
claims "Provisions that settle past carrier-specific disputes, that do not relate to Section 251, or
that are no longer in effect are not subject to Section 251(i) and this offering.
The agreements submitted by Qwest included portions that had been redacted. Qwest
claimed these portions included "confidential settlement amounts relating to settlement of
historical disputes between Qwest and the particular CLEC, confidential billing and bank
account numbers and facility locations, which relate solely to the specific CLEC and do not
relate to Section 251 (b) or (c) services.
1 Only Iowa has issued on Order concerning this question. The Iowa Department of Commerce Utilities Board
found that certain agreements between Qwest and Covad and McLeod were interconnection agreements. In re
AT&T Corporation v. Qwest Corporation Docket No. FCU-02-2 (issued May 29, 2002).
DECISION MEMORANDUM
TELECOMMUNICATIONS ACT OF 1996.
Under the provisions of the federal Telecommunications Act of 1996, interconnection
agreements must be submitted to the Commission for approval. 47 U.C. ~ 252(e)(1). The
Commission may reject an agreement adopted by negotiations only ifit finds that the agreement:
(1) discriminates against telecommunications carrier not a party to the agreement; or (2)
implementation of the agreement is not consistent with the public interest, convenience and
necessity. 47 U.c. ~ 252(e)(2)(A). Pursuant to 47 U.C. ~ 252(e)(4) if the Commission does
not act to approve or reject the agreement within 90 days after its filing by the parties of that
matter that was adopted by negotiation it shall be deemed approved. Qwest filed these
agreements on August 21 2002. Accordingly, the Commission has until November 20 2002 to
approve or reject them.
PROCEDURE TO PROCESS THESE AGREEMENTS
Because these previously unfiled agreements raise similar issues Staff recommends
that they be consolidated and processed together.
As a matter of course the Commission Staff has been processing interconnection
agreements and amendments to them similar to tariff advices in order to expedite their review
and approval by the Commission. However, because this case involves agreements that have
created great controversy before several state commissions and the FCC, Staff believes that
review of them should be at least accomplished by using Modified Procedure under the
Commission s Rules of Procedure. Accordingly, Staff recommends that the Commission issue a
Notice of Applications and Notice of Modified Procedure for these consolidated cases.
Staff also recommends that in this Notice the Commission establish a 21-day period
for interested persons and parties to file petitions to intervene into this matter. Staff recommends
that Qwest, McleodUSA, Eschelon and Covad be made parties to this case automatically by
virtue of Qwest filing the agreements with the Commission.
Staff also recommends that the comments establish an initial period of 28 days for
interested persons and parties to submit written comments.After this period expires Staff
recommends that the Commission establish a 14-day period for interested persons and parties to
file written reply comments.
DECISION MEMORANDUM
COMMISSION DECISION
1. Does the Commission wish to consolidate these cases and process them in one
proceeding?
2. Does the Commission wish to issue a Notice and Request for Comments of these
Qwest filings, and consider them in accordance with Modified Procedure?
3. Does the Commission wish to set an intervention deadline?
4. Does the Commission wish to use a 28-day comment period and 14-day reply
comment period.
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DECISION MEMORANDUM