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Home My WebLink About20021015_295.pdfDECISION MEMORANDUM TO:COMMISSIONER KJELLANDER COMMISSIONER SMITH COMMISSIONER HANSEN JEAN JEWELL RON LA W LOUANN WESTERFIELD TONYACLARK DON HOWELL DAVE SCHUNKE RANDY LOBB JOE CUSICK CAROLEE HALL WAYNE HART LYNN ANDERSON GENE FADNESS WORKING FILE FROM:WELDON STUTZMAN DATE:OCTOBER 10, 2002 RE:CASE NO. USW-00-, MOTIONS TO REOPEN QWEST'S SECTION 271 CASE Since Qwest Communications withdrew its initial Section 271 application with the Federal Communications Commission, two separate motions to reopen the proceedings before the Idaho Commission have been filed.Joseph B. McNeal doing business as PageData (PageData) filed a motion to reopen on September 17, 2002 , " based on discrimination of local Idaho carriers.AT&T Communications of the Mountain States, Inc. (AT&T) filed its motion to reopen and supplement the record on September 19, 2002. Noting that Qwest withdrew its FCC application because of accounting issues related to Qwest's Section 272 affiliate , AT&T asked the Commission to reopen the proceeding to "require Qwest Corporation (Qwest) to supplement the record with sufficient record to demonstrate that Qwest and its new Section 272 affiliate are in compliance with Section 272 ofthe Telecommunications Act of 1996 (Act). DECISION MEMORANDUM PageData s Motion to Reopen In its motion, PageData asserts that "Qwest has discriminated against PageData for over four years by not filling requests for additional interconnection capacity including a continuing, four year old request for ten T-ls in PageData s Boise location." PageData further asserts that Qwest failed to provide the same terms and conditions to PageData as it has to Western Wireless and US WEST's New Vector in interconnection agreements with those companies. PageData contends Qwest's discriminatory action toward PageData results from Qwest's failure "to recognize PageData as a full-fledged CMRS carrier equivalent to its subsidiary, US WEST's New Vector , and continues to pigeonhole PageData as a Type 1 only paging carrier." PageData by its motion "seeks an order from the Idaho PUC to reopen Qwest's Section 271 proceeding to consider new recent evidence of Qwest' s discriminatory practices. Qwest filed a response to PageData s motion on October 3 , 20~2. Qwest argues PageData s motion to reopen must be denied on several grounds, the first of which is untimeliness. Noting that PageData never intervened in the Section 271 case, Qwest argues its late motion is "fatally flawed" because it "constitutes the hopelessly belated intervention of a party that could have participated in this docket when it was open and when the issues it now advances were being explored." Qwest also contends the allegations made by PageData are not properly part of a Section 271 review, and that if any matters of fact remain in dispute in the on- going ligitation between Qwest and PagaData , " those disputes must be addressed outside the now completed 271 review by this Commission. PageData filed a response to Qwest's brief on October 9 , 2002. PageData provides more details on its arguments, and includes information of an investigation underway by the Minnesota Department of Commerce regarding "secret" agreements between Qwest and Eschelon and McLeod Communications. PageData points to a preliminary finding in that investigation that Eschelon "did not fully participate in Qwest's (Minnesota) proceeding because of its unfiled agreement with Qwest. PageData argues this suggests "that Eschelon, and likely others, did not submit accurate information in Qwest's Section 271 proceeding in Idaho. Regarding its claims against Qwest, PagaData stated it "wi111eave it to the Idaho Commission discretion to hear PageData s complaint under Qwest's 271 proceedings or to hold a separate proceeding to hear PagaData s complaint." DECISION MEMORANDUM AT&T's Motion to Reopen AT&T in its motion notes that the FCC may not approve a Section 271 application unless it finds that the provision of interLA T A services will be carried out in accordance with the requirements of Section 272. Qwest withdrew its initial application at the FCC because accounting irregularities raised questions regarding Qwest's ability to comply with the accounting requirements of Section 272. In the letter to the FCC withdrawing its application Qwest recognized that questions raised by FCC Staff "regarding the issue of whether Qwest Communications Corporation (QCC), the designated Section 272 affiliate, can be said to meet the requirements of Section 272, given pending restatement of its financial statements for past periods." With the issues that arose regarding QCC, Qwest intends to establish a new Section 272 affiliate, and AT&T contends "a fresh commission evaluation and recommendation on Qwest's new separate subsidiary is imperative." AT&T asks the Commission to reopen the record on Qwest's compliance with Section 272. On September 20, 2002, Qwest filed a brief in opposition to AT&T's motion to reopen and supplement the record. Qwest points out that the act requires the FCC to consult with state commissions "in order to verify the compliance of the Bell Operating Company with the requirements of subsection (c)." 47 U.C. 271(d)(2)(B). The requirements of subsecton (c) relate to local competition issues (compliance with the 14 item competitive checklist and the Track AlB requirements), but subsection (c) does not include compliance with Section 272 as a subject for FCC consultation with the states. Qwest notes that it is obligated to prove at the FCC that once Section 271 approval is granted, the books, records and accounts of Qwest's long- distance affiliate wi11 comply with FCC rules relating to generally accepted accounting principles. Thus, although compliance with Section 272 was part of the review already undertaken by the Commission on Section 271 , Qwest argues "it was never required to do so and it is neither necessary nor required to repeat that exercise at AT&T's behest now." On September 30, 2002 , Qwest filed "supplemental authority" on the points raised by AT&T' motion to reopen, consisting of a copy of an order issued by the Washington Utillties and Transportation Commission denying a similar AT&T motion filed in that state. The Washington Commission concluded that "( n Jeither the Act nor the FCC requires this Commission to reopen the proceeding, and doing so is not in the interest of judicial economy. AT&T filed reply comments on September 25 , 2002. AT&T points out that the Commission previously reviewed Qwest's compliance with Section 272 and that significant and DECISION MEMORANDUM legitimate issues were raised in that review. AT&T argues "(tJhere is no assurance that Qwest will timely implement the required structural, transactional and nondiscrimination safeguards for its relationship with its new section 272 affiliate. Staff's Recommendation. Staff recommends the Commission deny both motions to reopen. PageData in its motion raises issues that are part of its on-going dispute with Qwest, some of which have been addressed by the Commission in other dockets. To the extent PageData raises new legitimate issues, the Commission can and should consider those in a formal complaint proceeding, should PageData choose to file one. Regarding the Minnesota Department of Commerce investigation and PageData s argument that Eschelon might have provided better information in Qwest's Section 271 case, Staff notes that the Commission already was aware of the Minnesota investigation. Eschelon has not been a service provider in Idaho and did not participate in the Idaho Section 271 case. Staff also believes it is appropriate for the Commission to deny AT&T's motion to reopen. Qwest withdrew its application from the FCC, and has since refiled it, as the result of discussions with that commission regarding accounting issues and Qwest's Section 272 affiliate. It ultimately is for the FCC to determine whether Qwest can comply with the Section 272 requirements. As the Washington UTC noted, neither the federal telecommunications act nor the FCC require this Commission to reopen its proceeding under these circumstances. Finally, since Qwest has now refiled its Section 271 application with the FCC, there is not sufficient time for this Commission to reopen its case and supplement the record. The FCC has set October 15, 2002, for comments to be filed by state commissions, which does not allow time for state commissions to build a new record prior to submitting comments. Staff recommends the motions to reopen filed by AT&T and PageData be denied. Commission Decision. Should the motions to reopen and supplement the record file by PageData and AT&T be denied? Weldon Stutzman VldIM:USWTOOO3 ws DECISION MEMORANDUM