DOCKETED C M Commissioner 0 0 4 MIKE GLEASON I Rn Commissioner AUG -7 2006 J - 5 KRISTIN MAWS U C Commissioner Rn 6 BARRY WONG E C3 N.- Commissioner E;
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c 1 1 BEFORE THE ARIZONA CORPORATIO, . COMMISSION 2 JEFF HATCH-MILLER N c) Chairman Arizona Corporation Commission 0w 3 WILLIAM MUNDELL 2- DOCKETED c m Commissioner 0 0 4 MIKE GLEASON I rn Commissioner AUG -7 2006 J - 5 KRISTIN MAWS U c Commissioner rn 6 BARRY WONG E C3 N.- Commissioner e;. 7 8 IN THE MATTER OF THE APPLICATION DOCKET NOS. T-03632A-06-0091 OF DIECA COMMUNICATIONS DBA T-03406A-06-0091 9 COVAD COMMUNICATIONS COMPANY, T-03267A-06-0091 ESCHELON TELECOM OF ARIZONA, INC., T-03432A-06-0091 10 MCLEODUSA TELECOMMUNICATIONS -T-04302A-06-0091 SERVICES, INC., MOUNTAIN T-0105 1B-06-0091 11 TELECOMMUNICATIONS, INC., XO COMMUNICATIONS SERVICES, INC. AND 12 QWEST CORPORATION REQUEST FOR QWEST CORPORATION’S COMMISSION PROCESS TO ADDRESS KEY RESPONSE IN OPPOSITION TO THE 13 UNE ISSUES ARISING FROM TRIENNIAL JOINT CLECS’ MOTION TO REVIEW REMAND ORDER, INCLUDING COMPEL 14 APPROVAL OF QWEST WIRE CENTER LISTS. 15 16 17 Qwest Corporation (“Qwest”) submits this response to Covad Communications 18 Company, Eschelon Telecom of Oregon, Inc., Mountain Telecommunications, Inc., 19 McLeodUSA Telecommunications Services, Inc., and XO Communications Services, Inc.’s 20 (collectively “Joint CLECs”) motion to compel. In support, Qwest states 21 INTRODUCTION AND SUMMARY 22 In response to the Joint CLECs’ July 5,2006 set of 45 data requests, Qwest provided the 23 Joint CLECs the comprehensive set of data it used to determine which wire centers in Arizona 24 satisfied the FCC’s TRRO wire center “non-impairment” criteria. However, Qwest properly 25 objected to one request at issue in this motion to compel (request no. 44). 26 The data that is relevant to this proceeding is Qwest’s April 2004 filing of December II T , 1 2003 data in Qwest’s ARMIS 43-08 an ual report to the FCC. This D ember 2003 ARMIS 2 data is the data that Qwest submitted to the FCC in February 2005 in support of its initial wire 3 center list and is consistent with the data upon which the FCC relied to make its wire center non- 4 impairment criteria determinations in its TRRO order. 5 Through their data request, the Joint CLECs seek data updated through March 2005 (or, 6 if March data is not available, through December 3 1,2004). The data the Joint CLECs seek is 7 new, additional data which is different from the data the FCC used to make its fundamental 8 determinations in its TRRO. Changing or modifying the thorough, detailed data that Qwest has 9 already provided is both unnecessary and contrary to the FCC’s stated intent regarding the data 10 on which non-impairment decisions are to be made. 11 The Joint CLECs’ data request and motion to compel are an attempt to impose upon 12 Qwest an ongoing, open-ended obligation to produce additional data. Compelling Qwest to 13 produce the data responsive to the request would result in precisely the type of complex and 14 lengthy proceeding that the FCC intended to avoid. As the FCC stated in the TRRO, “[wle are 15 acutely aware of the need to base any test we adopt here on the most objective criteria possible in 16 order to avoid complex and lengthy proceedings that are administratively wasteful but add only 17 marginal value to our unbundling analysis.” TRRO, 7 99. 18 Accordingly, for the reasons set forth below, the data the Joint CLECs seek is irrelevant, 19 adds nothing to the probative value of determining the accuracy of the original “non-impaired” 20 wire center list, and is not reasonably calculated to lead to the discovery of admissible evidence. 21 Even a broad and liberally-construed policy favoring discovery in most instances does not apply 22 in situations where the data requests at issue have no relevance to the issues or scope of the 23 docket. Thus, the Commission should deny the Joint CLECs’ motion to compel. 24 25 26 2 L I 1 ARGUMENT 2 I. Qwest’s use of December 2003 data is consistent with the data the FCC analyzed in making its non-impairment decisions in the TRRO and is the available data when 3 the FCC directed RBOCs to submit their non-impaired list of wire centers 4 Qwest’s use of December 2003 ARMIS data is consistent with the data the FCC analyzed 5 in making its non-impairment decisions in the TRRO. This December 2003 ARMIS data is also 6 the data that was available when the FCC directed Qwest and the other RBOCs to submit the list 7 of wire centers that meet the non-impairment criteria, which Qwest did in February 2005. 8 Specifically, the FCC in its TRRO stated: “The BOC wire center data that we analyze in this 9 Order is based on ARMIS 43-08 business lines, plus business UNE-P, plus UNE ~OOPS.” TRRO, 10 7 105. The data which formed the basis for the FCC’s analysis was ARMIS data from December 11 2003, which Qwest filed in April 2004. This same data was also the data that was available on 12 February 4,2005 when the FCC directed Qwest and the other RBOCs to submit the list of wire 13 centers that meet the FCC’s non-impairment criteria. Consequently, the use of December 2003 14 data is both appropriate and consistent with the FCC’s intent to base determinations on “an 15 objective set of data that incumbent LECs already have created for other regulatory purposes.’’ 16 TRRO, 7 105. 17 In their motion to compel, the Joint CLECs argue that Qwest’s December 2004 ARMIS 18 data was or should have been available at the time that Qwest made its wire center filing with the 19 FCC in February 2005. That assertion is mistaken, however, as ARMIS data is not filed until 20 April of the following calendar year.’ More importantly, however, even if such data had been 21 available as of February 2005 (or even as of the March 11,2005 effective date of the TRRO), the 22 data would still not be relevant to an inquiry of the wire center list and data that Qwest submitted 23 to the FCC at the FCC’s direction in February 2005. Qwest’s February 2005 filing at the FCC 24 used December 2003 data. If the FCC had desired its wire center lists to be based on subsequent 25 ’ There was also no FCC filing of ARMIS data as of March 2005. Thus, the Joint 26 CLECs’ request for that data (see data request nos. 33 and 34) also cannot be satisfied. 3 1 i 1 data, it most certainly would have requested such data. However, the FCC did not request any 2 subsequent data. Rather, it requested the wire center lists based on the most current data 3 available at the time those lists were filed in February 2005.2 4 The Joint CLECs claim in their motion that the TRRO did not specify the date on which 5 these counts were to be made. They claim, however, that because the order “became effective on 6 March 11,2005,” “[tlhe determinations made pursuant to that order . should be based on data 7 that is contemporaneous with that date.” (Joint CLECs’ Motion, p. 3.) However, Qwest did in 8 fact provide the data that was readily available, and that the FCC requested, at that point in time. 9 The FCC had requested that FU3OCs compile the list of non-impaired wire centers prior to the 10 March 11,2005 effective date, and thus the “most current data available” at that time was the 11 December 2003 ARMIS data.3 12 Accordingly, the Joint CLECs’ attempts to deny that the FCC clearly contemplated the 13 14 The Joint CLECs’ data requests also beg the question why they did not act promptly in response to the wire center data that Qwest provided in February 2005 shortly after the FCC 15 issued the TRRO. Even if the December 2004 data were relevant to these issues, which it is not, it would not be reasonable for the Joint CLECs’ one-year delay in disputing Qwest’s wire center 16 list to serve as the basis for requiring Qwest to undertake an entirely new, time-consuming data- gatherhg effort. The Joint CLECs’ make the nonsensical argument that “the FCC obviously 17 contemplated that the wire center designations are to be based on the most current data available because the TRRO expressly contemplates fbture non-impairment designations, which would be 18 meaningless if only 2003 data could be considered” (Joint CLECs’ Motion, p. 3). Qwest certainly agrees that the TRRO expressly contemplates fbture non-impairment designations. 19 Those future designations (Le., subsequent updates to the list), of course, will be made based on the “most current data available” at that time (the ARMIS data filed and available at the date of 20 futureJi1ing.s). For example, as the Washington Commission correctly ruled, “[oln a going- 21 forward basis, however, Qwest and Verizon must submit the most recent ARMIS 43-08 data when seeking to add any new wire centers to the list of non-impaired wire centers the 22 Commission resolves in this proceeding.” Washington Initial Order, p. 10,124. For example, if Qwest were to seek to designate an additional wire center as non-impaired for DSl/DS3 loops or transport at any point during the remainder of 2006, Qwest would be required to utilize 2005 23 ARMIS data (the most current ARMIS data available today). In other words, if in July 2006, 24 Qwest were to seek to add a particular wire center to the non-impaired wire center list based on business line counts, it would need to rely on the most current available ARMIS report, which 25 was its 2005 ARMIS 43-08 report.