BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF COLORADO
RUBY RANCH INTERNET COOPERATIVE ASSOCIATION, PETITIONER,
v.
QWEST CORPORATION, RESPONDENT.
ARBITRATION DOCKET NO. 01B-493T
PETITIONER’S MOTION TO COMPEL QWEST TO RESPOND TO PETITIONER’S DISCOVERY
The Ruby Ranch Internet Cooperative Association (“Coop”) petitions the Commission to enter an order requiring Qwest Corporation (“Qwest”) to respond immediately to the discovery that the Coop served on Qwest on December 12, 2001.(1) Because the Hearing is scheduled to commence on January 31, 2001, the Coop further requests that the Commission act promptly on this motion, so the Coop can receive Qwest’s responses in sufficient time to prepare for the Hearing.
Qwest has not explained any of its objections (e.g., it asserts without any discussion that half of the admission requests are not relevant). The Coop should not be required to separately justify each discovery request for relevance if Qwest chose not to explain its relevancy objection with respect to each request. Qwest may choose to provide such explanation in its response to this motion, which is due in three business days.(2) If Qwest does provide in its response some explanation for its objections, the Coop seeks leave to have three business days from receipt of the response so that the Coop can reply to any new arguments that Qwest makes.(3)
Commission Rule 77(b)(4) specifies that the party seeking discovery should make a good-faith effort to resolve any discovery dispute. Coop Board Member, Carl Oppedahl, telephoned Qwest’s attorney, Mr. Tymkovich, on Monday, December 24, 2001.(4) Mr. Oppedahl was told that Mr. Tymkovich was in the office but was on the telephone, and Mr. Oppedahl was invited to leave a voicemail message. Carl Oppedahl did so, and has not heard back from Mr. Tymkovich after some three hours. The other Qwest attorney listed on Qwest’s objections is a Kris A. Ciccolo. Mr. Oppedahl also attempted to call Ms. Ciccolo on Monday, December 24, 2001, and reached voicemail. Mr. Oppedahl left a voicemail message, but has likewise not heard back from Ms. Ciccolo after some three hours.
Mr. Tymkovich’s and Ms. Ciccolo’s unavailability pose a major practical problem for the Coop. If the Coop were to defer submitting this motion to compel until Mr. Tymkovich or Ms. Ciccolo becomes available, the Coop would have even less time before the hearing before it receives Qwest’s response to the discovery. Because of the expedited time frames under which the Commission and the parties are operating and because Qwest’s response to this motion is due in three business days, the Coop respectfully requests that the Commission waive further contact requirements in this particular discovery matter. Besides, on a more practical level, given the nature of the objections that Qwest has raised, it is highly unlikely that Qwest would radically change its position on the issues or eliminate the need for the Commission to prepare an order resolving the discovery issues.
I. Background Facts
Although Qwest provides such high-speed, “always on” DSL services in certain areas, it has chosen not to provide its services to the residents of the Ruby Ranch neighborhood (nor to any Qwest customer in Summit County). To fill this void, certain Ranch residents formed the Coop to provide high-speed, “always on” DSL services to ourselves. However, the Coop can provide these services only if Qwest leases certain of its subloops, located entirely on Ruby Ranch, on terms that are just, reasonable, and cost-based.
The Communications Act imposes on Qwest the “duty” to provide unbundled network elements (“UNEs”) like subloops on “rates, terms, and conditions that are just [and] reasonable.”(5) The Act further specifies that Qwest’s prices “shall be based on the cost” of providing the UNEs.(6) While the Act gives Qwest the option to file a Statement of Generally Available Terms (“SGAT”), Congress was very clear that the “submission or approval of a statement under this subsection shall not relieve a Bell operating company of its duty to negotiate the terms and conditions of an agreement under section 251.”(7)
The Coop asked Qwest to lease subloops on June 1, 2001, and little was accomplished during the subsequent discussions (largely because Qwest offered certain terms on a “take it or leave it” basis’). The Coop raised three issues in its October 25, 2001 arbitration petition:
Qwest, in its Response to the arbitration petition, “generally denies the factual allegations Ruby Ranch asserts in support of its claims” and “affirmatively states that there is no factual or legal support for each of Ruby Ranch’s complaints.”(8)
On December 12, 2001 (immediately prior to the Prehearing Conference), the Coop served on Qwest requests for admission, requests to product documents, and interrogatories. All of this discovery – which Qwest challenges as “not reasonably calculated to lead to the discovery of admissible evidence” – is directly related to the three issues in this arbitration petition. The Coop submitted this discovery for two reasons: (1) to narrow the scope of the facts in controversy and thereby minimize the time needed for the hearing; and (2) to learn from Quest the factual basis for its position on the three issues. The most serious problem the Coop has had with Qwest is getting Qwest to explain and justify its positions regarding the contested issues. Although the Coop requested subloops from Qwest nearly seven months ago (on June 1, 2001), and despite the Coop’s repeated requests, Qwest has declined to explain its position on the issues – although as evidenced by its response to the arbitration petition, it continues to deny that the Coop’s position has merit.
Qwest’s responses to the discovery were due in 10 days, but Qwest requested and received a one-week extension to January 3, 2002. The Coop did not oppose this request because it assumed that Qwest would timely respond on the extended due date – at least to some if not all of the discovery requests. On December 19, 2001, Qwest mailed its objection to all of the Coop’s discovery requests arguing, among other things, that the discovery is “not reasonably calculated to lead to the discovery of admissible evidence.” The Coop received the objection on December 20, 2001. Accordingly, it appears that Qwest will not be responding to any of the discovery on January 3, 2001.
Qwest’s objections are baseless, as demonstrated below. But by filing its objections, Qwest has successfully delayed the date that it finally divulges the facts (if any) in support of its position (because of the time the Commission will require to prepare an order disposing of this motion to compel). The Coop requested subloops from Qwest seven months ago, and the time must come for Qwest to divulge the facts it will be relying upon in support of its defense. The Coop suspects that Qwest has no facts in support of its position, and the sooner Qwest admits this point, the sooner the parties can engage in meaningful negotiations. With meaningful negotiations, this arbitration and the schedule hearing may no longer be necessary.
II. Certain of Petitioner’s Discovery Is No Longer Relevant, and the Petitioner Withdraws Those Discovery Requests
Certain of the Coop’s discovery has become unnecessary given the ruling of the Administrative Law Judge (“ALJ”) at the December 12, 2001 Prehearing Conference.
Qwest, in its November 19, 2001 Response to the Coop’s arbitration petition, asserted that the Coop had “breached” the parties’ confidentiality agreement.(9) The Coop demonstrated in its November 27, 2001 Reply that this argument lacked merit. In its discovery (Admission Nos. 26-31 and 82; Document Request No. 1), the Coop sought information so that it could demonstrate to the Commission that Qwest’s assertion that the Coop breached a private confidentiality agreement was not only baseless and but that Qwest knew the argument was baseless before raising the matter with the Commission. At the December 12, 2001 Prehearing Conference, the ALJ ruled that any dispute over a private nondisclosure agreement was not relevant to the arbitration hearing. Accordingly, Petitioner’s Admission Nos. 26-31 and 82, and Document Request No. 1 are no longer relevant and are hereby withdrawn.
III. Motion to Compel
Qwest raises six different objections to the Coop’s discovery requests. The Coop below responds to these objections in the order that Qwest has raised them:
1. Excessive Admission Requests. Qwest says that the Coop’s admission requests are “harassing, unduly burdensome, . . . and not reasonably calculated to lead to the discovery of admissible evidence.” Qwest, however, makes no demonstration in support of these summary assertions.
The Coop’s challenged discovery is relevant. The Commission has established the legal standard governing the issue of relevance in discovery proceedings:
The scope of discovery is broad. Relevancy in the discovery context in broader than relevancy at hearing. Martinelli v. District Court, 612 P.2d 1083, 1087 (Colo. 1980). It appears that the information sought does generally bear upon the issue of competition and competitive pressures in the switched access market. Therefore the Motion to Compel should be granted. The Commission’s Rules on Confidentiality are sufficient to protect the confidential nature of this information.(10)
In this instance, each of the admission requests (except those discussed above) is directly relevant to the issues in this arbitration proceeding, as is discussed more fully below in the response to Qwest’s second objection. The admission requests are fact-based and straightforward. The Coop believes that a knowledgeable Qwest employee could respond to all the admission requests in an hour or less. Accordingly, the Coop cannot agree that the requests are overly burdensome.
Two points bear emphasis concerning this Qwest objection. First, many of the requests are necessary because Qwest chose to offer certain terms on a “take it or leave it” basis and refused to provide any of the supporting information that the Coop has sought. Qwest took this extreme position even though the Federal Communications Commission (“FCC”) has squarely held that an incumbent LEC like Qwest engages in bad faith in not providing supporting cost data:
It would be reasonable, for example, for a requesting carrier to seek and obtain cost data relevant to the negotiation . . . We conclude that an incumbent LEC may not deny a requesting carrier’s reasonable request for cost data during the negotiation process, because we conclude that such information is necessary for the requesting carrier to determine whether the rates offered by the incumbent LEC are reasonable.(11)
Second, the admission requests are necessary because Qwest continues to “den[y] the factual allegations Ruby Ranch asserts in support of its claims” and “affirmatively states that there is no factual or legal support for each of Ruby Ranch’s complaints.”(12) The Commission has recognized in other proceedings that claims of burden merit no weight where it is the objecting party that triggers the need for the discovery.(13)
It also bears noting that during the December 12, 2001 hearing the Administrative Law Judge asked for and received a copy of the Coop’s discovery requests, which included thirty-seven pages of documents produced to Qwest. The Administrative Law Judge later ruled that the Coop is “limited to one additional round of written discovery consisting of no more than 20 data requests, however denominated.” This suggests that the discovery requests served on December 12 and reviewed that day by the Administrative Law Judge were not excessive, since the Administrative Law Judge ruled that additional discovery requests could be made.
2. Relevancy; Overbreadth. Qwest complains that many of the discovery requests “are not reasonably calculated to lead to the discovery of admissible evidence,” although Qwest does not explain its position.(14) The Coop respectfully disagrees:
Need for Insurance. Qwest has demanded that the Coop obtain insurance as a condition to renting subloops, but Qwest has refused to identify the risks that the Coop’s activities would allegedly pose to Qwest. During the parties’ discussions, the Coop explained to Qwest that its proposed service would entail less risk to Qwest than Qwest’s provision of ordinary POTS service, yet Qwest does not demand that its ordinary POTS customers obtain a $1 million insurance policy. Admission Nos. 1-3, 25, 68-69 and 91, and Interrogatory Nos. 1-5 are all directed to the subject of insurance.
Quote Preparation Fee. Qwest wants to charge the Coop $1,707 to tell the Coop that the cost to purchase and install a screw terminal that will cost $100 or $200. Qwest has refused to cost-justify this fee, even though as noted above, the FCC has ruled that an incumbent LEC engages in bad faith by not furnishing supporting cost data. Admission Nos. 7-8 and Document No. 2 are all directed to the subject of the quote preparation fee.
Activation Fee. Qwest wants to charge the Coop $126 to activate each subloop – a price that is more than double what it charges to activate a business POTS line – even though activation of the subloops in question would require Qwest to perform only half the work of that needed to activate a POTS line. Qwest has refused to cost-justify this fee, even though as noted above, the FCC has ruled that an incumbent LEC engages in bad faith by not furnishing supporting cost data. Admission Nos. 4-6 and Document No. 3 are all directed to the subject of the activation fee.
Qwest Network Capacity. Qwest has stated in the past(15) that the Coop’s lease of certain subloops may prevent it from providing additional services on Ruby Ranch. Admission Nos. 9-23 are designed to demonstrate that Qwest has ample spare subloops available to lease to the Coop. The Coop will agree to withdraw these particular admission requests if Qwest states under oath that (1) it has ample spare subloops to lease to the Coop, and (2) the Coop’s lease of up to 60 subloops will not affect in any way Qwest’s provision of additional services on Ruby Ranch.
Technical Feasibility. Qwest’s obligation to provide unbundled networks elements is triggered only if “technically feasible.”(16) Admission No. 24 and Interrogatory Nos. 6-8 are designed to assist the Coop in showing that Qwest’s installation of a screw terminal in its cross box is technical feasible.
Need for Coop. Qwest has decided, as is its right, that we in the Ruby Ranch neighborhood are not worthy of its high-speed, “always on” DSL services. The Coop was formed because given this Qwest decision, Ruby Ranch residents would not have access to such advanced telecommunications services unless we self provision the capability. However, by refusing to provide subloops on terms that are just, reasonable and cost based, Qwest is effectively deciding that Ruby Ranch residents may not have access to advanced telecommunications services under any circumstances. Admission Nos. 32-42 are designed to show that although Qwest advertises its DSL services to Ranch residents, it has no intent of providing such services to Ranch residents.
3. Vague and ambiguous. Qwest asserts that 12 requests for admission are “too vague and ambiguous for Qwest fairly to admit or deny.” For example, Qwest objects to Admission No. 1, which states: “Admit that Proposed Service poses less risk to Qwest’s network, in technical terms, that POTS service.” The accompanying definitions define “Proposed Service” as “the SDSL service which the Coop proposes to provide, using a DSLAM located at the Barn and using DSL modems located at subscriber premises within the Neighborhood, the DSLAM and the DSL modems connected using Subloops.” (The definitions also describe the terms Barn, DSL, DSLAM, Neighborhood, POTS, SDLS and Subloop.) Admission No. 1 simply asks Qwest to confirm that the Coop’s proposed service would involve less risk than the risks Qwest faces with its provision of ordinary POTS service. If Qwest does not demand that its POTS customers obtain a $1 million insurance policy, then the Coop should not be required to obtain such a policy. Admission No. 1 is not vague and ambiguous, and neither are the other 11 requests that Qwest objects to on this ground.
4. Settlement discussions, proposed agreement negotiations. Qwest objects to unspecified discovery requests based on (a) “information shared as part of the parties’ settlement discussions” or (b) “their negotiations of the proposed interconnection agreement or that purport to require Qwest to provide or confirm such information.” The Commission should reject this omission for Qwest’s failure to identify the specific discovery requests which it believes is improper.
The Commission should be aware that the Coop has not learned any information from Qwest as a result of “settlement discussions.” The Coop has made several settlement proposals to Qwest, but with the exception of the last proposal, they were rejected without explanation. The most recent offer was made to Qwest on November 9, 2001. Qwest stated that it would get back to the Coop, but it never did. On the morning of December 12, 2001, the Coop asked Qwest’s attorney to pursue with his clients the same offer the Coop made earlier. The Coop still has not received a response. The only “settlement proposal” that Qwest has made to the Coop is that the Coop find some other entity to lease the subloops from Qwest, although Qwest did not identify what other carrier the Coop might contact (and the Coop is not aware of any CLEC operating in Summit County). Qwest also suggested in one conference that it might consider eliminating the insurance requirement if the Coop agreed to pay higher “retail” (i.e., non-cost-based) subloop prices. However, Qwest withdrew this idea at the next negotiating session. (In at least the Coop’s judgment, this Qwest idea nevertheless confirms that Qwest itself acknowledges that insurance is not necessary.)
The Coop does not understand Qwest’s second objection – namely, that certain discovery requests are based on the parties’ interconnection discussions. Qwest has demanded, for example, that the Coop obtain an insurance policy as a condition to renting the subloops. During these discussions, Qwest refused to identify the risk that the Coop posed to it. Qwest has also acknowledged that the Coop would have difficulty obtaining an insurance policy if it cannot identify to the insurance company the risks that would be subject to the policy. Is Qwest now suggesting that the Coop may not have Qwest confirm that it has refused to identify the risks that the Coop’s activities would pose to Qwest?
5. Unduly Burdensome. Admission Nos. 48-61 ask Qwest to authenticate certain documents (e.g., letters, emails) that the parties exchanged to simplify the hearing by obviating the need to authenticate these documents during the hearing. Qwest objects to this procedure because it would have to compare the documents that the Coop attached with the originals in its possession – namely, do before the hearing the same activity it would otherwise have to do at the hearing.
The Coop submits that it has a right to know in advance of the hearing that Qwest will not raise authentication issues at the hearing. The Coop further submits that everyone – the parties and the Commission – would benefit by resolving these evidentiary issues before the hearing. The Coop respectfully requests that the Commission deny this Qwest objection.
6. Confidential Data. Document Request Nos. 2 and 3 ask Qwest to produce “all cost and other documents, if any, substantiating” its $1,707 quote preparation fee and $126 activation fee for each subloop. Qwest repeats its objection that “this information is not relevant,” even though as noted above the FCC has held that an incumbent LEC like Qwest engages in bad faith in not providing supporting cost data.
Qwest also objects to providing this data “without adequate assurance that Ruby Ranch will preserve the confidentiality of this data.”(17) The ALJ has ruled that this proceeding will be governed by the Commission’s confidentiality rules, and the Coop will abide by these rules. So the record is clear, the Coop will comply fully with the Commission’s Rules Relating To The Claim Of Confidentiality Of Information Submitted To The Colorado Public Utilities Commission, 4 C.C.R. 723-16. The Coop has never published anything on its web site which Qwest has designated as “confidential,” for the simple reason that Qwest has never designated any information as “confidential.” Again, so that the record is clear, if Qwest ever does produce any information designated as “confidential,” the Coop will not publish such information on its web site or disclose such information outside of the Coop, subject of course to the Commission’s rules (723-16-3.3 et seq.) permitting a challenge to alleged confidentiality of information.
Moreover, the Coop will withdraw Document Request Nos. 2 and 3 if Qwest: (1) agrees that its $1,707 quote preparation fee and $126 activation fee are not cost-based (at least as applied to the facts presented by the Coop request), and (2) agrees to a quote preparation fee of $33.17 and an activation fee of $35 for the first subloop and $20 for additional subloops, which are the Coop’s reasonable estimates of Qwest’s actual costs.(18) The Coop would have no need to review “sensitive” Qwest cost data if Qwest agreed to these reasonable terms.
IV. Conclusion
For the foregoing reasons, the Coop respectfully requests that the Commission deny Qwest’s objections in toto. Because the hearing is to begin in one month and because the Coop has been waiting seven months to receive much of this information, the Coop further requests that the Commission require Qwest to respond to all discovery requests within three business days of its order.
Respectfully submitted,
RUBY RANCH INTERNET COOPERATIVE ASSOCIATION
_______________________________
Carl Oppedahl, Director
C/o Oppedahl & Larson LLP
P.O. Box 5088
Dillon, CO 80435-5088
970-468-6600
carl@rric.net
December 24, 2001
CERTIFICATE OF SERVICE
The undersigned certified that on this 24th day of December, 2001, a true and correct copy of the foregoing PETITIONER’S MOTION TO COMPEL QWEST TO RESPOND TO PETITIONER’S DISCOVERY was sent to the following persons in the manner indicated:
Timothy M. Tymkovich
Hale Hackstaff Tymkovich & ErkenBrack LLP
1675 Broadway, Suite 2000
Denver, CO 80202
By Federal Express tracking number 790981556436
By email ttymkovich@halehackstaff.com
Kris A. Ciccolo
Qwest Services Corporation
1005 17th Street, Suite 200
Denver, CO 80202
By Federal Express tracking number 791740954402
______________________________
Carl Oppedahl
(1) In compliance with Rule 77(b)(6), the Coop attaches the discovery that it served on Qwest and which Qwest now objects, along with Qwest’s objection thereto.
(2) See Interim Order No. 6 (Dec. 13, 2001).
(3) With three business days, the Coop would have two days to prepare its reply and devote one day for over-nighting the reply to the Commission.
(4) It is noted that the Commission’s offices were open on December 24, 2001, as were Mr. Tymkovich’s offices.
(5) 47 U.S.C. § 251(c)(3).
(6) 47 U.S.C. § 252(d)(1)(A)(i).
(7) 47 U.C.C. § 252(f)(5).
(8) Qwest Response at 2 (Nov. 19, 2001).
(9) Qwest’s Response at 5 (Nov. 19, 2001).
(10) In the Matter of the Application of U S WEST Communications for the Commission to Open an Investigatory Docket to Eliminate the Requirement that U S WEST Impute Switched Access Rates into the Floor of Its IntraLATA Long Distance Service, Decision No. R00-742-I, Docket No. 00A-201T (July 7, 2000) (ALJ Kirkpatrick).
(11) First Local Competition Order, 11 FCC Rcd 15499, 15578 ¶ 155 (1996).
(12) Qwest Response at 2 (Nov. 19, 2001).
(13) See In the Matter of Reanet Corporation’s Application for Operating Authority in Areas Serviced by Centurytel, Columbine Telephone, Delta County Tele-Com, Nucla-Naturita Telephone, and Rye Telephone, Decision No. R00-1185-1, Docket No. 00A-382T (Oct. 18, 2000)(ALJ Kirkpatrick).
(14) Qwest specifically refers to admission requests 1-25; 31-42; 46; 47; 66-69; 82 and 91; production requests 1-3; and Interrogatories 1-8.
(15) Qwest letter to the Coop dated August 14, 2001, produced by the Coop to Qwest as document numbers 116-118. This document is available on the Coop’s web site at http://www.rric.net/exhibits.htm .
(16) 47 U.S.C. § 251(c)(3).
(17) In support, Qwest resurrects its argument that the Coop supposedly breached a non-disclosure agreement – although the ALJ has ruled that this issue is not relevant to this proceeding. More troubling, in the Coop’s view, is that Qwest repeats this argument without any supporting facts – and after the Coop had demonstrated that it had not breached the non-disclosure agreement that it had executed.
(18) See Coop Reply at 6-7 (Nov. 27, 2001).