20050622Vol I.pdf

BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
JOSEPH B. McNEAL dba PAGEDATA,
Petitioner /Appellant,
IDAHO PUBLIC UTILITIES COMMISSION,
Respondent on Appeal,
and
QWEST CORPORAT!ON,
Respondent/Respondent on Appeal.
HEARING BEFORE
) SUPREME COURT
DOCKET NO.
31844
) I PUC CASE NO.
) QWE-T-O3-
COMMISSIONER PAUL KJELLANDER (Presiding)
COMMISSIONER MARSHA H. SMITH
COMMISSIONER DENNIS S. HANSEN
PLACE:Commission Hearing Room
472 West Washington Street
Boise, Idaho
DATE:June 8, 2005
VOLUME I - Pages 1 -
COURT REPORTING
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POST OFFICE BOX 578
BOISE, IDAHO 83701
208-336-9208
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For the Staff:
For Qwest:
DONOVAN E. WALKER, Esq.
Deputy Attorney General
472 West WashingtonBoise, Idaho 83702
BATT & FISHER, LLP
by WILLIAM J. BATT, Esq.
101 South Capitol Boulevard,
Suite 500Boise, Idaho 83702
HEDRICK COURT REPORTING
P. O. BOX 578, BOISE, ID
APPEARANCES
83701
BOISE, IDAHO, WEDNESDAY, JUNE 8, 2005, 1:47 P.
COMMISSIONER KJELLANDER:Well, good afternoon.
This is the time and place for a hearing on Supreme Court
Docket No. 31844 in reference to IPC -- IPUC Case No.
QWE-T-03-25, and the Notice of Hearing was distributed to all
the parties.The time in which it was to start was 1: 30.
is now 1: 45 and we re ready to take the appearances of the
parties.Let me begin first with the legal counsel
representing the Staff of the Public Utilities Commission.
MR. WALKER:Thank you, Mr. Chairman.My name is
Donovan Walker, Deputy Attorney General, representing
Commission Staff.
Thank you.And let'COMMI S S IONER KJELLAN DER :
move now to Mr. Batt.
William Batt for Qwest.MR. BATT:
COMMISSIONER KJELLANDER:And for the record,
Mr. Joseph McNeal and PageData are not present for today ' s
hearing.
And it is an opportunity for the argument in
reference to additional material to be submitted to the
official record for the Supreme Court case, and I believe that
it was Staff that had requested the hearing, and so why don
we begin with Staff and they can put forward their argument.
HEDRICK COURT REPORTING
P. O. BOX 578, BOISE, ID
COLLOQUY
83701
MR. WALKER:Thank you, Mr. Chairman.
As mentioned, we re here today to hear Staff'
obj ection to the inclusion of certain documents that were
requested to be in the Record on Appeal by PageData.This is
specifically an appeal of Case No. QWE-T-03-25 to the Idaho
And in its Notice of Appeal , PageData requestedSupreme Court.
that in addition to all of the documents that are automatically
included pursuant to Idaho Appellate Rule 28, that the entire
Commission file from a different case, that being Case No.
QWE-T-03-06, be included in the Record on Appeal to the Supreme
Court.And pursuant to the schedule and procedure set forth in
the Idaho Appellate Rules, Staff has filed two documents in
reference to the Record on Appeal.
First, Staff filed a Request for an additional
record to be included that specifically set forth the documents
from other case files outside of the 03-25 case that it
believes are relevant, necessary, and that were considered by
the Commission in issuing a Final Order on this matter.Those
specific documents simply show the adoption and the amendment
and the approval of the Qwest and PageData interconnection
agreement.That was an interconnection agreement that was
adopted from a different case and was amended through two
subsequent cases.
Now, secondly, Staff filed this obj ection to the
record specifically obj ecting to pages 90 through 92 and 100
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through 217 , and that's found in Volume I of the proposed
prepared Agency s record.These documents that we objected to,
first of all, are not relevant to this current appeal at all.
Secondly, we believe they were not considered -- as not being
part of the record were not considered by the Commission in
issuing its Final Orders that are on appeal in this case.And,
thirdly, the documents obj ected to concern an entirely separate
matter from the one that's being appealed that had its own
separate issues, its own separate Final Orders, and those
Orders were never appealed by PageData and became completely
final.It's now well past the 42 days in which PageData had to
appeal those Final Orders, and we obj ect to their inclusion and
the possibility that PageData could try to bootstrap arguments
that were not appealed from that case into this case when
they re separate matters.
Lastly, it's clear from both Idaho Code Section
61-629 and the Idaho Appellate Rule 29 that when there s an
objection to the proposed Record on Appeal, that the Commission
must have a hearing and must determine what is to be included
in the record and settle the record that is to be transmitted
to the Court.The Commission should exclude all documents not
considered by the Commission in rendering its Final Order in
the case appealed, which is the 03-25 case, and settle the
record that is to be transmitted wi thin seven days over to the
Supreme Court.
HEDRICK COURT REPORTING
P. O. BOX 578, BOISE, ID
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83701
Staff respectfully objects to the inclusion of
pages 90 through 92, 100 through 217 , of Volume I, and ask that
those pages be stricken from the Agency s record.
COMMISSIONER KJELLANDER:Thank you, Mr. Walker.
Are there any questions from members of the
Commission?
Let's move to Mr. Batt.
MR. BATT:Thank you, Mr. Chairman, and
Commissioners.Qwest -- I filed a Joinder in the Staff'
Motion.We agree 100 percent with what Mr. Walker has said.
We see no good reason that these things should be included.
The history of the litigation with these pagers, and
particularly, PageData, is they seem to try to obfuscate the
issues in one case by filing lots of cases and then mixing them
all up, and I think it would be a disaster for the Supreme
Court actually if they got these other documents in, because
they have nothing at all to do with the issues that will go up
So we join in the Staff's obj ection.on appeal.
COMMISSIONER KJELLANDER:Thank you, Mr. Batt.
Are there any questions from members of the
Commission?
For the record, we again note that Mr. McNeal is
not present for the hearing, and, therefore, it makes
impossible at least at this time to receive any comments from
him for the record as the Commission prepares to deliberate on
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the obj ection raised before us.
Is there anything else that needs to come before
the Commission?
Nothing from Staff at this time.MR. WALKER:
Nothing from Qwest.MR. BATT:
At this point I thinkCOMMISSIONER KJELLANDER:
what we ll do, as a Commission, is just take a short recess and
ll be back in hopefully just a few moments to wrap up
today s proceedings.
(Recess.
COMMISSIONER KJELLANDER:ll go back on the
record.
The Commission has deliberated on the issue and
has chosen to rule from the Bench this afternoon, and in
reference to the specific documents that Staff objects to and
that Qwest has joined in in obj ecting to having those included
in the record, the Commission concurs and sustains that
obj ection.And, therefore, then, the record that goes forward
on appeal to the Supreme Court will not include pages
through 92 and 100 through 217 from Volume I on the pages that
are noted in the obj ection filed by Staff and concurred with by
Qwest.
So I believe then that we have settled the record
that will be forwarded to the Supreme Court, and, again, in
doing so, we would concur that the pages that we re looking at
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being included were not relevant to the case and certainly not
considered by this Commission in the Order that is currently on
appeal at the Supreme Court.
So unless there s anything further to come before
the Commission, we will adj ourn this hearing.
(The hearing adjourned at 1:57 p.
HEDRICK COURT REPORTING
P. O. BOX 578, BOISE , ID
COLLOQUY
83701
AUTHENTICATION
This is to certify that the foregoing is a
true and correct transcript to the best of my ability of the
proceedings held in the matter of Joseph B. McNeal dba
PageData, Petitioner/Appellant, versus Idaho Public Utilities
Commission, Respondent on Appeal, and Qwest Corporation,
Respondent/Respondent on Appeal, Supreme Court Docket No.
31844, IPUC Case No. QWE-T-03-25, commencing on Wednesday,
June 8, 2005, at the Commission Hearing Room, 472 West
Washington, Boise, Idaho, and the original thereof for the file
of the Commission.
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WENDY J. MUR N tary Public
in and for th tate of Idaho,
residing at Meridian, Idaho.
My Commission expires 2-5-2008.
Idaho CSR No.4 7 5
HEDRICK COURT REPORTING
P. O. BOX 578, BOISE, ID
AUTHENTICATION
83701