20021114_314.pdf

DECISION MEMORANDUM
TO:CO MMISSI 0 NER KJELLAND ER
COMMISSIONER SMITH
CO MMISSI 0 NER HANSEN
JEAN JEWELL
RON LAW
LOU ANN WESTERFIELD
LYNN ANDERSON
DON HOWELL
RANDY LOBB
JOE CUSICK
WAYNE HART
TERRI CARLOCK
TONY A CLARK
BEV BARKER
GENE FADNESS
WORKING FILE
FROM:JOHN R. HAMMOND
DATE:NOVEMBER 7,2002
RE:AMENDMENTS MADE TO EXISTING QWEST INTERCONNECTION
AGREEMENTS WITH ESCHELON TELECOM, INc. (1 AMENDMENT),
COV AD COMMUNICATIONS COMPANY (2 AMENDMENTS) AND
MCLEODUSA (3 AMENDMENTS. CASE NO. QWE-02-17.
On August 21 , 2002, Qwest Corporation filed six contractual arrangements it had
previously implemented with Eschelon Telecom, Inc., McLeodUSA Telecommunications Services
Inc., and Covad Communications Company. Qwest has requested that the Commission approve
these arrangements as amendments to existing interconnection agreements with these companies. In
Order No. 29116 the Commission provided notice of Qwest' s filings, set written comment and reply
comment deadlines, and consolidated the Commission s consideration of these contractual
arrangements into a single case, Case No. QWE-02-17. On September 19 2002, Qwest filed an
amendment to one of the previous amendments (approved by Commission Order No. 29000) to the
existing interconnection agreement it had with McLeodUSA. Qwest also sought Commission
approval of this amendment. The Commission found that this new amendment should also be
DECISION MEMORANDUM
included in Case No. QWE-02-17 for its review. Order No. 29128 at 2. Order No. 29128 also
amended the time deadlines for filing written comments and reply comments. Id. at 4.
The Commission Staff and PageData have filed written comments.
BACKGROUND
These negotiated agreements, now filed as amendments to existing interconnection
agreements, have been at issue in several states and before the Federal Communications Commission
FCC,,l The central issue in many ofthese proceedings has been whether or not Qwest complied
with the requirements of the Telecommunications Act of 1996. Specifically, whether these
agreements and others constituted interconnection agreements under the Act that had to be filed with
State Commissions, pursuant to 47 U.c. ~ 252(e)(1), in the states they were implemented.
Recently, the FCC issued a decision on what types of agreements had to be filed as
interconnection agreements pursuant to the Act. The FCC found that any agreement that creates an
ongoing obligation regarding resale, number portability, dialing parity, access to rights-of-way,
reciprocal compensation, interconnection, unbundled network elements or collocation is an
interconnection agreement. Qwest Petition for Declaratory Ruling, 2002 WL 31204893, at 5
(F. C. C. 2002). Furthermore, the FCC found that dispute resolution and escalation provisions relating
to obligations set forth in Sections 251 (b) and (c) are appropriately deemed interconnection
agreements. !d. However, the FCC also ruled that agreements that simply provided for "backward
looking consideration" need not be filed as interconnection agreements. !d. at 6. The FCC further
stated that it believed State Commissions should be responsible for applying in the first instance, the
statutory interpretation it set forth to the terms and conditions of specific agreements. !d.
Despite these proceedings, Qwest in its Applications claims that it has at all times
operated in good faith in filing with the Commission pertinent interconnection agreements and
amendments, and is committed to full compliance with the Act. Accordingly, Qwest contends that
as a demonstration of its good faith, the Company is now broadly filing all contracts, agreements or
letters of understanding between Qwest and CLECs that create obligations to meet the requirements
of 47 u.S.c. ~ 251(b) or (c) on a going forward basis. Qwest states that it believes its new filing
policy goes well beyond the requirements of47 U.C. ~ 252(a) but will continue the policy until the
1 Cases considering these types of agreements exist in Arizona, Iowa and Minnesota.
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FCC issues a decision that further defines the regulations of the Act. As previously discussed, that
decision has now been issued by the FCC.
The Company also states that it has also reviewed older unfiled agreements and
determined that some should now be filed as interconnection agreements so that their terms are
available to other CLECs under 47 v.C. ~ 252(i).
In regard to the agreements that it has now filed, Qwest requests that the Commission
approve them as soon as reasonably practicable.
COMMENTS
The Commission Staff
In its written comments the Commission Staff outlined the contents of each of the
agreements at issue in this case. After reviewing these matters Staff makes the following
recommendations.
Staff found that each ofthe six late-filed agreements (excluding the September 19, 2002
Amendment) contained terms relating to Sections 251(b) and/or (c), and that these terms impose an
ongoing obligation upon the parties. Therefore, Staff found the filing and consideration of these
agreements in accordance with Section 252(a)(1) to be appropriate.
Staff noted that the Commission may rej ect an agreement adopted by negotiations only if
it 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.S.C. ~ 252(e)(2)(A).
Staff reviewed these agreements, and found the majority of the terms to be
nondiscriminatory and in the public interest. Thus, Staffbelieves the terms ofthese agreements may
enhance the ability of other competitors to compete in the marketplace.
However, Staff believed that some terms of these agreements are not in the public
interest. Staff stated that the confidentiality clauses contained in these agreements are clearly
contrary to the intent of Section 252(a)(1) and the pick and choose provisions of Section 252(i).
Thus, it would not be in the public interest for CLECs to be able to include a confidentiality clause in
2 Qwest realizes that its decision to file these Agreements now does not bind the Commission in respect to questions
regarding the Company s past compliance with the Act. Likewise, Qwest states that it reserves its right to demonstrate
that these Agreements need not have been filed in the event of an enforcement action.
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any subsequently negotiated interconnection agreement. Staff recommended the Commission
condition any approval ofthese six late-filed agreements upon notice that the confidentiality clauses
are not part of that approval.
Similarly, some ofthe agreements contain terms that required the CLEC to withdraw its
opposition to certain Qwest proceedings. Staff asserted that restricting CLEC participation was not
in the public interest to the extent that these CLECs may have presented arguments beneficial to
those proceedings. Staff recommended that language ofthis type not be approved as part ofthese six
agreements. Furthermore, language such as this should not be contained in any going forward
agreement adopted by other CLECs.
Based on these recommendations Staff encouraged the Commission to approve these six
agreements in accordance with 47 u.S.C. ~ 252(e)(1), subject to the conditions identified above.
Staff also recommended that the Commission approve the September 19 2002 Amendment.
Despite its recommendation Staff noted that the filing of these agreements raised a
number of other issues. Each of these agreements was implemented long before the Company
filing in this case. In addition, at least one of these agreements refers to previous agreements that
have yet to be filed with the Commission. Thus, Staff believed there may be questions about
whether Qwest failed to timely file these six agreements and others in violation of the requirements
ofthe Telecommunications Act of 1996. Staff believes the Commission at some point may wish to
investigate these issues in a new case. For this reason Staff recommended that the Commission
should make clear that approval of these six agreements shall not foreclose consideration of Qwest'
compliance with the filing requirements of the Act in a future proceeding.
As indicated above, other agreements exist that may be subj ect to the filing requirements
of Section 252(a)(1). Thus, Staff recommended that the Commission instruct Qwest to review any
and all agreements it may have executed with competitive carriers in Idaho that had terms that went
in effect after the effective date of Section 252( a)(1) and that the Commission direct the Company to
file any ofthese agreements that fall within the scope of the FCC's recent decision.
Pa2eData
PageData filed written comments on October 25 2002. PageData is headquartered in
Boise, Idaho and provides paging services among other services it offers its customers. In general
PageData contends that Qwest has damaged the Idaho telecommunications market by its failure to
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timely file these agreements now filed as interconnection agreements. PageData asserts this has
hindered competition in Idaho and creates higher prices for the Idaho consumers.
PageData argues that despite the filing of agreements in this case, all unfiled agreements
that Qwest has made have not been filed with the Idaho Commission. PageData requests that the
Commission order Qwest to file all applicable interconnection agreements, within 10 days that have
been recently filed in Iowa, New Mexico, Arizona and Minnesota. The Company also states that the
Commission should send a letter to all carriers in Idaho requiring them to send in a copy of all
interconnection agreements, documents relating to interconnections or letter agreements they have
entered into with Qwest that have not as of yet been filed with Commission. PageData also asserts
that the Commission should require Qwest to file all applicable, cancelled unfiled agreements in
Idaho. PageData also contends that the Commission should require Qwest to reveal all past and
present oral agreements made with other carriers and have them filed as interconnection agreements
in Idaho.
PageData also requests that the Commission create a broad definition of what constitutes
an interconnection agreement. PageData also suggests that the Commission consult with other states
that have investigated Qwest for unfiled interconnection agreements and determine whether
agreements filed in those states should also be filed in Idaho.
PageData also argues that should the Commission approve the current agreements before
, the confidentiality provisions contained in them should be removed from the agreements. Finally,
PageData argues that should Qwest and other carriers not respond in an appropriate manner
consistent with Commission directives it should turn uncooperative carriers over to the Idaho
Attorney General's Office for legal action.
COMMISSION DECISION
Does the Commission wish to approve the agreements that Qwest has filed in this case as
interconnection agreements, subject to the conditions described by the Commission Staff?
Does the Commission wish to take any further action in this proceeding? Specifically,
does the Commission wish to:
1. Instruct Qwest to continue to review all of its unfiled agreements with
carriers that may be applicable in Idaho and to file as interconnection
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agreements any of these that fall within the scope of the FCC's recent
decision.
2. Instruct Qwest to file any agreement that has been filed with other State
Commissions that has applicability to Idaho.
Does the Commission wish to take any further action in this proceeding based on the
written comments filed by PageData?
t/ammOlld
Staff: Joe Cusick
Wayne Hart
M:QWETO217 jh
DECISION MEMORANDUM