20060221L3C response QWE 2nd set requests.pdf

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Dean J. Miller
McDEVITT & MILLER LLP
420 West Bannock Street
O. Box 2564-83701
Boise, ID 83702
Tel: [phone]
Fax: [phone]
i oe(2V,mcdevitt -miller. com
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Attorneys for Level Communications, LLC
ORIGINAL
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF LEVEL 3
COMMUNICATIONS, LLC'S PETITION FOR
ARBITRATION PURSUANT TO SECTION
252(B) OF THE COMMUNICATIONS ACT
OF 1934, AS AMENDED BY THE
TELECOMMUNICATIONS ACT OF 1996
AND THE APPLICABLE STATE LAWS FOR
RATE, TERMS, AND CONDITIONS OF
INTERCONNECTION WITH QWEST
CORPORATION
Case No. QWE-O5-
LEVEL 3 COMMUNICATIONS
LLC'S RESPONSE TO QWEST
CORPORATION'S SECOND SET
OF DISCOVERY REQUESTS
LEVEL 3 COMMUNICATIONS. LLC'S RESPONSES TO QWEST CORPORATION'
SECOND SET OF DATA REQUESTS
Level 3 Communications, LLC ("Level 3"), by and through its undersigned attorneys
hereby submits its Responses to Qwest Corporation s ("Qwest") Second Set of Data Requests as
follows:
GENERAL OBJECTIONS
Level 3 objects to Qwest's instructions and to each request to the extent that such
request seeks the disclosure of information or documents containing privileged communications
attorneys' work product or trial preparation material , and/or other protected information on the
LEVEL 3 COMMUNICATIONS, LLC'S RESPONSE TO QWEST CORPORATION'S SECOND SET OF
DISCOVERY REQUESTS - 1
grounds that such discovery is not permissible under the applicable rules of the Idaho Public
Utilities Commission. Level 3 further objects to each request to the extent that each seeks the
disclosure of information or documents that are subject to any obligation of confidentiality owed
by Level 3 to any third party without an adequate Protective Order.
Level 3 objects to each and every data request to the extent that the information
requested is "confidential
" "
highly sensitive confidential " or constitutes "trade secrets
pursuant to Idaho law. To the extent that Qwest requests such proprietary, confidential or
competitively sensitive business information, Level 3 will only make such information available
once an appropriate Protective Order is entered in this docket. Any production by Level 3 of
confidential information or material will be governed by such Protective Order.
Level 3 objects to each and every data request insofar as the data requests are
vague, ambiguous, overly broad, unduly burdensome, imprecise, or utilize terms that are subject
to multiple interpretations but are not properly defined or explained for purposes of these data
requests. Any answers provided by Level 3 in response to the data requests will be provided
subject to, and without waiver, ofthe foregoing objections.
Level 3 objects to each and every data request insofar as it is not reasonably
calculated to lead to the discovery of admissible evidence and is not relevant to the subject
matter of this action.
Level 3 objects to Qwest's data requests insofar as they require the production of
documents that are within the control of Qwest.
Level 3 objects to Qwest's data requests to the extent they seek to impose
obligations on Level 3 that exceed the requirements of applicable law.
LEVEL 3 COMMUNICATIONS, LLC'S RESPONSE TO QWEST CORPORATION'S SECOND SET OF
DISCOVERY REQUESTS - 2
Level 3 objects to Qwest's instructions and the data requests to the extent that any
instruction or request requires Level 3 to respond more fully than is required by Idaho law or the
rules of the Idaho Public Utilities Commission.
Level 3 objects to any data request that seeks to obtain "all
" "
each " or "every
document, item, customer, or other such piece of information to the extent that such requests are
overly broad and unduly burdensome. Any answers provided by Level 3 in response to this
discovery will be provided subject to, and without waiver of, the foregoing objection.
Level 3 objects to any data request that calls for a legal conclusion. Such
discovery is not reasonably calculated to lead to the discovery of admissible evidence and is not
relevant to the subject matter of this action.
10.Level 3 objects to the data requests to the extent such requests seek to have Level
3 conduct a special study and create documents not in existence at the time of the request.
11.Level 3 objects to the data requests to the extent that the requests are not limited
to any stated time period or state a period of time that is longer than is relevant for purposes of
the issues in this docket and are not limited by geography or jurisdiction, as such discovery is
overly broad and unduly burdensome, and is not reasonably calculated to lead to the discovery of
admissible evidence and is not relevant to the subject matter of this action.
12.Level 3 objects to each and every data request that seeks information, to the
extent such is requested, regarding Level 3's projections regarding future services, revenues
marketing, strategies, equipment deployments, or other such future business plans as such
requests are trade secrets and, for purposes of this proceeding, would be highly speculative and
irrelevant to the issues to be decided in this docket.
13.Level 3 objects to the data requests to the extent they seek information not within
LEVEL 3 COMMUNICATIONS, LLC'S RESPONSE TO QWEST CORPORATION'S SECOND SET OF
DISCOVERY REQUESTS - 3
Level 3's possession, control, or custody or to the extent the requests ask that Level 3 provide
information that Level 3 does not maintain in the ordinary course of business and, therefore
requests information that cannot be provided without completing a special study or analysis.
14.In light of the short period of time Level 3 has been afforded to respond to the
data requests, the development ofLevel3's positions and potentially responsive information
to the requests is necessarily ongoing and continuing. Level 3 expressly reserves the right to
supplement or modify its discovery responses based on its ongoing inquiry.
LEVEL 3 COMMUNICATIONS, LLC'S RESPONSE TO QWEST CORPORATION'S SECOND SET OF
DISCOVERY REQUESTS - 4
RESPONSES AND SPECIFIC OBJECTIONS
In his rebuttal testimony, Mr. Gates states: "Level3's proposed language was acceptable
to SBC, Verizon, and BellSouth." Gates Reb. At 1.
With regard to that statement, please identify the specific contract language
proposed by Level 3 in this docket that "was acceptable to SBC, Verizon, and
BellSouth." Identify such contract language by reference to the specific section
proposed by Level 3 for the interconnection contract in this proceeding.
Provide copies of approved interconnection agreements currently in effect with
(a) SBC, (b) Verizon, and (c) BellSouth in which the language identified in
subpart a is incorporated into the agreement. This request (m Jay be satisfied bythe production of one agreement for each of the three ILECs identified.
RESPONSE 1:
Level 3 objects to this request as because it is taken out of context & Mr. Gates
will be available for cross examination in Idaho. Without waiving this objection
Level 3 has previously provided copies of these contracts to Qwest. Moreover
these documents are public records and easily made available to Qwest.
See above.
Person to answer questions at hearing: Tim Gates.
LEVEL 3 COMMUNICATIONS, LLC'S RESPONSE TO QWEST CORPORATION'S SECOND SET OF
DISCOVERY REQUESTS - 5
2. In his rebuttal testimony, Mr. Gates testified that "(b Jy requiring a single POI per LATA
the FCC has effectively defined the local calling area for interconnecting to CLECs to be the
LATA." Gates Reb. At 12.
Please identify all FCC decisions (by docket number and date of decision) upon
which Mr. Gates relies for the quoted conclusion.
Is Mr. Gates or Level 3 aware of any FCC decisions wherein the FCC has made
the explicit holding that the local calling area for an interconnecting CLEC is the
LATA? If so, identify all such FCC decisions by docket number, date of decision
and paragraph numbers wherein such a holding was explicitly made.
RESPONSE 2:
Mr. Gates explains his position in his testimony. Nevertheless, see Mr. Gates' rebuttal
testimony for decisions on single POls (e., pages 9 and 10).
No. As stated in Mr. Gates' testimony, his opinion is that "the FCC has effectively
defined the local calling area - for interconnection purposes - to be the LATA."
Person to answer questions at hearing: Tim Gates.
LEVEL 3 COMMUNICATIONS, LLC'S RESPONSE TO QWEST CORPORATION'S SECOND SET OFDISCOVERY REQUESTS - 6
3. In his rebuttal testimony, Mr. Gates states: "The FCC has pre-empted the Board on
intercarrier compensation" for certain traffic. Gates Reb. at 25.
What specific types of traffic types does Mr. Gates claim that the FCC has
preempted the states with regard to intercarrier compensation?
As to each type of traffic identified in response to subpart a, identify the FCC
order or orders (by docket number, date, and paragraph numbers) wherein the
FCC preempted state commissions on intercarrier compensation for each specific
type of traffic.
RESPONSE 3:
ISP-bound traffic.
This question calls for a legal conclusion; it will be addressed in briefs.
Person to answer questions at hearing: Tim Gates.
LEVEL 3 COMMUNICATIONS, LLC'S RESPONSE TO QWEST CORPORATION'S SECOND SET OF
DISCOVERY REQUESTS - 7
4. In his rebuttal testimony, Mr. Gates has stated that under the ESP exemption
, "
ISPs are
allowed to purchase their services from local tariffs. . . ." Gates Reb. at 31. Is Mr. Gates aware
of any Qwest Idaho tariffs or catalogued services that allow an end user the LATA-wide ability
to terminate calls without incurring additional charges to those assessed under the local tariff or
catalogue? If so, identify all such tariffs.
RESPONSE 4:
Mr. Gates has not completed his investigation ofIdaho local service tariffs. Generally
speaking, however, retail local tariffs do not allow LATA wide calling without some
form of additional payment.
Person to answer questions at hearing: Tim Gates.
LEVEL 3 COMMUNICATIONS, LLC'S RESPONSE TO QWEST CORPORATION'S SECOND SET OF
DISCOVERY REQUESTS - 8
In other states, Mr. Gates has testified that Level 3 has agreements with IXCs for IXC
traffic and that "Level 3 is willing to pay access charges for IXC traffic." (Gates Iowa
Rebuttal at 32, lines 1-2). With regard to this statement, please respond to the following
questions:
As used in this specific statement, what describe traffic that falls within Mr.
Gates' definition of "IXC traffic
Under Mr. Gates' definition of"IXC traffic " would a call from a Qwest end user
in Idaho Falls that is delivered to a Level 3 POI in Boise through the use of a local
Idaho Falls number and then delivered by Level 3 to an ISP also located in Boise
be an "IXC call" under Level3's definition? Ifnot, why not?
Under Level3's definition, would a call from a Qwest end user in Idaho Falls that
is delivered to a Level 3 POI in Boise through the use of a local Idaho Falls
number and then delivered by Level 3 to an ISP located in New York City be an
IXC call" under Level3's definition?
RESPONSE 5:
It is not at issue.
No. This is a locally dialed call originating in TDM and terminating to IP. It undergoes
a net protocol conversion. As such, it is an information service. Exclusive jurisdiction of
Qwest tariffs cannot apply FCC (ISP Remand Order, Vonage Order). Pursuant to the
single POI requirement, Qwest would deliver that call to the POI for handoffto Level 3
for termination. Accordingly, ITom a network perspective as Mr. Ducloo has
demonstrated, traffic exchanged over a single interconnection network at a single POI is
not only technically feasible and efficient, it costs Qwest nearly nothing. The location
the Level 3 customer does not determine the treatment or handling of the call. Indeed
Qwest has admitted in discovery that the location of Level 3' s customer does not impact
Qwest's costs. Further, this call would be similar to Qwest's OneFlex TM service wherein
Qwest provides "alias" or "virtual" phone numbers for individuals not physically located
where the number resides.
The answer to this question depends on whether the Qwest end user dialed 1 + to an IXC
who delivered that call to Level 3 in NYC or whether the end user placed a locally-dialed
call to a Level 3 VoIP number, which would be delivered to either Level3's POI within
the LATA or to existing Level 3 facilities within such Local Calling Area, which VoIP
call Level 3 route in IP to any location where the called party had broadband Internet
access, such as New York City or next door to the calling Party.
Person to answer questions at hearing: Tim Gates.
LEVEL 3 COMMUNICATIONS, LLC'S RESPONSE TO QWEST CORPORATION'S SECOND SET OF
DISCOVERY REQUESTS - 9
6. In other states, Mr. Ducloo contrasted two calls, one that originates with a Qwest end
user and terminates at the Des Moines Register and one that originates with a Qwest end user
but "is terminated into the vastness ofthe Internet." (See Ducloo Iowa Rebuttal at page 7, lines
10-11: R. 123).
RESPONSE 6:
Using the quoted language as a hypothetical example, please describe Level3'
position as to where a call to the Internet terminates for purposes of the
application of compensation under the ISP Remand Order (i., the location of
the POI of carrier serving the ISP, the location of the equipment of the ISP such
as modems, servers, and routers, or the location of the web sites the end user
accesses during the Internet session, or some other location).
Ifthe termination point is not one of the three alternatives described in subpart a
please identify the termination point.
The term "terminates" describes either a call originating in IP and terminating to
TDM or a call originating in TDM and terminating to IP. Accordingly, as Mr.
Ducloo demonstrates, in an IP network, the location of equipment and users is not
relevant to the use of the service. As regards to interconnection, the
determination of where the call "terminates" is irrelevant to the actual exchange
of traffic.
The FCC has resolved the question of intercarrier compensation for this traffic.
See response to 6a above.
Person to answer questions at hearing: Rogier Ducloo.
LEVEL 3 COMMUNICATIONS, LLC'S RESPONSE TO QWEST CORPORATION'S SECOND SET OFDISCOVERY REQUESTS - 10
7. Mr. Ducloo testified that "RUF is the concept that applies to entrance facilities that Level
3 might purchase from Qwest which are dedicated to the exclusive use of the two carriers.
Ducloo Reb. at 10. Is it Level3's position that RUF does not apply equally to direct trunked
transport (DTT)? If so, please explain why it would apply to entrance facilities and not to DTT.
RESPONSE 7/ OBJECTION:
Level 3 objects to this request insofar as it seeks legal conclusions and not facts and is
therefore not reasonably calculated to lead to the discovery of admissible evidence. This
will be addressed in briefs.
Person to answer questions at hearing: Rogier Ducloo.
LEVEL 3 COMMUNICATIONS, LLC'S RESPONSE TO QWEST CORPORATION'S SECOND SET OFDISCOVERY REQUESTS - 11
8. The following questions relate to VoIP services where Level 3 provides such service
directly to government or business customers or where Level 3 provides service that enables
third party VoIP providers to provide VoIP service:
Does Level 3 take the position in this docket that the physical location where
Level 3 provides the IP to TDM conversion should not be a factor in determining
whether state or federal access charges apply to particular VoIP calls exchanged
between Level 3 and Qwest? If the response is anything other than an
unequivocal yes, please describe the situations in which the physical location
where Level 3 provides the IP to TDM conversion should not be a factor in
determining whether state or federal access charges apply to particular VoIP calls
exchanged between Level 3 and Qwest.
RESPONSE 8:
Level 3 objects to this request insofar as it seeks legal conclusions and not facts
and is therefore not reasonably calculated to lead to the discovery of admissible
evidence. This will be addressed in briefs.
Person to answer questions at hearing: Rogier Ducloo.
LEVEL 3 COMMUNICATIONS, LLC'S RESPONSE TO QWEST CORPORATION'S SECOND SET OF
DISCOVERY REQUESTS - 12
9. Does Level 3 consider all traffic carried or that it plans to carry on its network in Idaho to
be "information services" traffic? If not, please describe traffic that Level 3 carries or plans to
carry in Idaho that is not "information services" traffic.
RESPONSE 9
Level 3 objects to this request insofar as it seeks legal conclusions and not facts and is therefore
not reasonably calculated to lead to the discovery of admissible evidence. This will be
addressed in briefs. Subject to and without waiving said objection, Level 3 provides Local
services in Idaho pursuant to its Idaho P.C. Tariff#3.
Person to answer questions at hearing: Rogier Ducloo.
LEVEL 3 COMMUNICATIONS, LLC'S RESPONSE TO QWEST CORPORATION'S SECOND SET OF
DISCOVERY REQUESTS - 13
10. Does Level 3 generate and store a switch or router-based record for calls originating
ITom Level 3 customers where the Level 3 customers are not charged per minute charges? If so
please describe the information captured in the record.
RESPONSE 10:
This response is confidential, trade secret information and is subject to the protective order
issued in this proceeding. Once Qwest has provided signatures to the Protective Order Level 3
will provide this response.
Person to answer questions at hearing: Rogier Ducloo.
LEVEL 3 COMMUNICATIONS, LLC'S RESPONSE TO QWEST CORPORATION'S SECOND SET OF
DISCOVERY REQUESTS - 14
11. The following questions relate to Level3's understanding of the application of its
proposed language with regard to VoIP traffic:
Assume a call is initiated in IP on IP-compatible CPE by a VoIP customer of
Level 3 (or a VoIP customer of a third party VoIP provider served by Level 3),
that customer has a Boise telephone number associated with its VoIP service, the
call enters the PSTN at a Qwest/Level 3 POI in Boise, and is transported by
Qwest to Qwest customer in Idaho Falls (with an Idaho Falls telephone number).
Under Level3's proposed language, would Qwest be entitled to intrastate access
charges or would it only be entitled to receive $.00077
Assume a call is initiated in IP on IP-compatible CPE by a VoIP customer of
Level 3 (or a VoIP customer of a third party VoIP provider served by Level 3),
that customer has a Idaho Falls telephone number associated with its VoIP
service, the call enters the PSTN at a Qwest/Level3 POI in Boise, and is
transported by Qwest to Qwest customer in Idaho Falls (with an Idaho Falls
telephone number). Under Level 3's proposed language, would Qwest be
entitled to intrastate access charges or would it only be entitled to receive $.00077
Assume a call is initiated in IP on IP-compatible CPE by a VoIP customer of
Level 3 (or a VoIP customer of a third party VoIP provider served by Level 3),
that customer has a Boise telephone number associated with its VoIP service, the
call enters the PSTN at a Qwest/Level 3 POI in Boise, and is transported by
Qwest to Qwest customer in Boise (with a Boise telephone number). Under
Level 3's proposed language, would Qwest be entitled to intrastate access
charges or would it only be entitled to receive $.00077
Are there any circumstances under Level 3' s proposed language in which Qwest
would be allowed to assess terminating access charges on a call that is initiated in
IP on IP-compatible CPE by a VoIP customer of Level 3 (or a VoIP customer of
a third party VoIP provider served by Level 3) and terminated by Qwest to a
Qwest customer in Idaho? If so, describe such situation or situations.
RESPONSE 11:
0007
0007
0007
No.
Person to answer questions at hearing: Rogier Ducloo.
LEVEL 3 COMMUNICATIONS, LLC'S RESPONSE TO QWEST CORPORATION'S SECOND SET OF
DISCOVERY REQUESTS - 15
12. In circumstances in which Level 3 provides VoIP services directly to large business or
government customers (as opposed to third party VoIP providers), does Level utilize an
interexchange carrier ("IXC") (either affiliated or non-affiliated with Level 3) for any VoIP
traffic? If not, why not?
RESPONSE 12:
Regardless of our customer s type, Level 3 does utilize IXCs to terminate VoIP traffic in
areas where we do not have multi-jurisdictional trunks in place or for traffic overflow
situations. Qwest (QCC) is one of the IXCs we utilize. We do utilize a local network for
VoIP originated and terminated with SBC, BellSouth, and Verizon. They also permit us
to terminate it over interconnection trunks and are open to discussing it originating over
such trunks.
Person to answer questions at hearing: Rogier Ducloo.
LEVEL 3 COMMUNICATIONS, LLC'S RESPONSE TO QWEST CORPORATION'S SECOND SET OF
DISCOVERY REQUESTS - 16
13. Assume a Qwest customer initiates a dial-up call to an ISP served by Level 3. As Mr. Gates
uses the phrase "cost causer" in his testimony, who is the cost causer for that particular call?
RESPONSE 13:
Qwest's customer is the "cost causer." Just as Qwest's user is the "cost causer" when
he/she calls the pizza parlor, the mechanic, or an airline for reservations.
Person to answer questions at hearing: Tim Gates.
LEVEL 3 COMMUNICATIONS, LLC'S RESPONSE TO QWEST CORPORATION'S SECOND SET OF
DISCOVERY REQUESTS - 17
14. State separately the amount of terminating compensation that Level 3 has received from
SBC, Verizon, and Bellsouth for terminating ISP -Bound traffic during the most recent month for
which data is available. Also state the rate charged each such RBOC for terminating ISP-Bound
traffic for the month in which the amount of terminating compensation is provided.
RESPONSE 14:
Level 3 objects to this data request insofar as it is not reasonably calculated to lead to the
discovery of admissible evidence and is not relevant to the subject matter of this action.
DATED this 21st day of February 2006.
Respectfully submitted
t~L-
Dean J. Miller
McDevitt & Miller LLP
420 W. Bannock
Boise, ID 83702
Phone: [phone]
Fax: [phone]
Counsel for Level Communications, LLC
LEVEL 3 COMMUNICATIONS, LLC'S RESPONSE TO QWEST CORPORATION'S SECOND SET OF
DISCOVERY REQUESTS - 18
CERTIFICATE OF SERVICE
I hereby certify that on the ~~ay of February, 2005 , I caused to be served, via the
methodes) indicated below, true and correct copies of the foregoing document, upon:
Jean Jewell, Secretary
Idaho Public Utilities Commission
472 West Washington Street
O. Box 83720
Boise, ID 83720-0074
i iewell~puc. state.id.
Mary S. Hobson
STOEL RIVES LLP
101 S Capitol Boulevard - Suite 1900
Boise, ID 83702-5958
Telephone: [phone]
Facsimile: [phone]
mshobson~stoel.com
Thomas M. Dethlefs
Senior Attorney
Qwest Services Corporation
1801 California Street - 10th Floor
Denver, CO 80202
Telephone: [phone]
Facsimile: [phone]
Thomas.Dethlefs(2V,qwest. com
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LEVEL 3 COMMUNICATIONS, LLC'S RESPONSE TO QWEST CORPORATION'S SECOND SET OF
DISCOVERY REQUESTS - 19