Ruby Ranch Internet Cooperative Association c/o Oppedahl & Larson LLP P.O. Box 5088 Dillon, CO 80435-5088 970-468-6600 carl@rric.net
December 10, 2001
Via Federal Express 790241533638
Mr. Ken K. Kirkpatrick Administrative Law Judge Colorado Public Utilities Commission 1580 Logan Street, Office Level 2 Denver, CO 80203
Re: Ruby Ranch Internet Cooperative Association v. Qwest Corporation, Docket No. 01B-493T
Dear Judge Kirkpatrick:
The Ruby Ranch Internet Cooperative Association (“Coop”) submits this letter in response to your November 30, 2001 Interim Order in the hope of making the prehearing conference scheduled for Wednesday more focused and productive. We are serving Qwest with a copy of this letter. For your convenience, we below address the issues addressed in the Interim Order in the order they were presented.
A. Prehearing Conference. I plan on attending the conference on Wednesday. One of our board members will be out of state on that date. The third board member may attend if his work schedule allows.
We would ask that if hearings are deemed necessary, that at least some of the hearing be conducted in Summit County. A hearing in Summit County would be especially important if we need Ruby Ranch residents to testify that “always on,” high-speed Internet access (vs. the 26 kbps access available with Qwest dial-up lines) is not a luxury but is necessary for the conduct of business and quality of life. As Qwest has stated of DSL service of the sort we want to provide: “Are you wasting time with the ‘world wide wait,’ instead of flying from site to site across the World Wide Web?” See www.quest.com/jump/dsl. We would hope that Qwest would stipulate to this point so it would become unnecessary to have other Ranch residents testify as witnesses.
B-C. Interim Relief. Admittedly, no service is being disconnected, but we believe that our timely access to advanced telecommunications services merits equal urgency. Section 706(a) of the Telecommunications Act of 1996 provides that “each State commission . . . shall encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans.” Ruby Ranch residents do not and will not have access to advanced services without the Coop’s services. Nevertheless, we will not second guess or challenge your denial of request for interim relief.
D. Representation. We believe that our Coop meets the definition of a “closely held entity” under C.R.S. § 13-1-127, and that we can therefore represent ourselves without a lawyer. The statute specifies three criteria for self-representation. First, the closely held entity must have “no more than three owners.” Id. at 127(1)(a). At present, we have only three Coop owner-members, all of whom who sit on the Board of Directors and all of whom have contributed time and money to launch service. (Although the Coop expects to have about a dozen customer-members at service launch, we cannot commence service unless and until we obtain the Qwest subloops, the subject of this proceeding.)
Second, the amount in controversy must “not exceed ten thousand dollars, exclusive of costs, interest, or statutory penalties.” Id. at 127(2)(a). We meet this criterion.
Finally, an officer of the cooperative must provide the agency “with evidence satisfactory to the . . . agency of the authority of the officer to appear on behalf of the close held entity.” Id. at § 127(2)(b). The statute further provides than an agency may rely upon “a written resolution of a closely held entity that allows a named officer to appear in the closely held entity’s behalf.” We will present at the prehearing conference a resolution of our Coop’s Board of Directors that authorizes any member of the Board to represent the Coop.
Please note that I am an attorney licensed to practice law in Colorado. Nevertheless, I must testify on behalf of the Coop and must cross-examine Qwest witnesses, both because it was I who conducted all the negotiations with Qwest and because I have certain technical knowledge not possessed by others. There are ethical rules that generally forbid a lawyer from being both an advocate and witness in the same proceeding (although these rules appear to be directed to jury trials). Because of the above resolution, I expect I will not be acting as an attorney but will merely be an authorized representative. One possibility would be for you to waive any potential conflict, thereby allowing me to act both as an advocate and if needed, a witness. We suspect you would have no difficulty telling the difference in my role as a lawyer and a witness.
One point should be apparent. Our Coop has no revenues because it has been unable to launch service. Retaining an outside attorney could not be cost justified as legal fees could easily exceed the amounts in dispute. Thus, a requirement that an attorney represent the Coop would mean as a practical matter that we would have to abandon our arbitration petition and Qwest would win by default. Such a result obviously would be neither fair nor just.
E-1. Discovery. One of our frustrations with Qwest is that after six months, we still do not know the basis for Qwest’s positions. Qwest has never challenged the facts we have presented (e.g., it has ample unused subloops available for lease), nor has it identified the arguments and supporting facts it intends to use in its defense.
We have prepared some discovery (requests for admissions, interrogatories, and document requests) in the hope of “fleshing out” Qwest’s defenses and supporting facts. (Consistent with Rule 77(b)(2), we are not filing this discovery with the Commission, but it is available on our web site, www.rric.net.) It will only be when Qwest responds that we will know if and where there exists a factual dispute between the parties. We would hope that there will be few disputes over material facts and that this matter could be decided by summary judgment, without the need for a time-consuming hearing.
E-2. Prefiled Testimony. This is a difficult subject for us. Because we are volunteers with full time jobs, we would much prefer to avoid the need to prepare prefiled testimony. Our case is simple, and we have already disclosed our supporting arguments and facts. But if we do not submit prefiled testimony, Qwest will undoubtedly contend that it should be excused from submitting prefiled testimony as well. But without prefiled testimony, we may not learn of Qwest’s arguments until the day of the hearing – leaving us completely unprepared. Would it be possible to defer the question of the need for prefiled testimony until we see the substance of Qwest’s defense (once it responds to our discovery)? You are certainly more experienced than us in these matters, and you may have better suggestions. We welcome any and all ideas.
F. Email. We will, of course, honor your order not to email anything to you in the absence of a specific request. We do seek clarification on two points, however.
First, we assume that the Coop can meet its service requirement (e.g., Qwest, Commission Staff) through the use of email. We cannot afford to use overnight courier for everyone, and the U.S. mail can be painfully slow. In our view, sending and serving documents via email is very efficient, especially for an entity with no revenues. Email service also accelerates the proceeding, because parties would have access to information sooner.
Second, may the Coop post lengthy attachments to pleadings via our web page (www.rric.net)? Again, making and serving copies of documents can be costly for an entity that has no revenues.
Additional Question. On November 27, 2001, the Coop submitted a reply to Qwest’s response to our arbitration petition. We would like to know whether this reply is part of the record or whether we need to raise the same points in future filings. Clarification on this point would be most welcome.
Thank you for your time and consideration in this matter.
Sincerely,
Carl Oppedahl, Board Member Ruby Ranch Internet Cooperative Ass’n
cc: Timothy M. Tymkovich and John R. Paddock, Jr., Qwest Attorneys by Fedex 791727817500 Kris A. Circcolo, Qwest Corporation