BEFORE THE PUBLIC UTILITIES COMMISSION

OF THE STATE OF COLORADO

RUBY RANCH INTERNET )

COOPERATIVE ASSOCIATION, )

)

PETITIONER ) ARBITRATION

) DOCKET NO. 01B-493T

V. )

)

QWEST COMMUNICATIONS, )

)

RESPONDENT )

QWEST'S RESPONSE OPPOSING

PETITIONER'S MOTION IN LIMINE

Qwest Corporation ("Qwest"), through its counsel, files the following Response Opposing the Motion in Limine filed by Petitioner Ruby Ranch Internet Cooperative Association ("Ruby Ranch").

Ruby Ranch's Motion in Limine asks the Arbitrator to prohibit Qwest from introducing any evidence at the January 31, 2002 hearing in this matter relating to(1) Qwest's costs to provide the two services for which Ruby Ranch contends Qwest's rates are too high; and (2) Ruby Ranch's breaches of the confidentiality agreement the parties signed as part of their negotiation meetings to discuss the terms of an interconnection agreement.

legal standard

The Public Utilities Commission ("Commission")"shall not be bound by the technical rules of evidence," but "to the extent practical, shall observe and conform to the Colorado Rules of Evidence." 4 C.C.R. 723-1-81(a). The Commission may receive or consider evidence not admissible under the rules of evidence "if the evidence possesses probative value commonly accepted by reasonable and prudent persons in the conduct of their affairs." 4 C.C.R. 723-1-81(b).

All relevant evidence is admissible. C.R.E. 402. Relevant evidence may be excluded

if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

C.R.E. 403 (emphasis added). Where evidence has a close relationship to the event charged, the balance between probative value and prejudicial effect should generally be struck in favor of admission. People v. Gibbons, 905 P.2d 604 (Colo. 1995).

A party's unclean hands prevent it from claiming prejudice supports a motion in limine. See, e.g., Jordan v. Bogner, 829 P.2d 414, 418-419 (Colo. App. 1991)(rev'd on other grounds, 844 P.2d 664, 668 (Colo. 1993))(motion in limine denied despite claim of surprise where movant was aware of existence of evidence and had opportunity to ameliorate potential effect of such prejudice but failed to do so; any alleged surprise was Athe product of plaintiff=s preparation efforts rather than active concealment by defendant.@).

A party seeking to exclude otherwise admissible evidence must prove it will be unfairly prejudiced if that evidence is considered. Evidence is not "unfairly prejudicial" when it merely damages the movant's case. "Unfair prejudice" means the evidence must have undue tendency to suggest the fact finder make a decision on an improper, usually emotional basis such as sympathy, hatred, contempt, retribution, or horror. People v. Eggert, 923 P.2d 230, 235 (Colo. App.1995).

Finally, with regard to the evidence of Ruby Ranch's breaches of the parties' Confidentiality Agreement and what that reflects concerning witness credibility. C.R.E. 404(b). Moreover, C.R.E. 608(b) provides that specific instances of conduct may, in the discretion of the court, be admissible if probative of truthfulness or untruthfulness. See, e.g., People v. Lesslie, 939 P.2d 443, 452 (Colo. App.1996).

ARGUMENT

An essential problem with Ruby Ranch's Motion in Limine is that it ignores the fact that both parties have already submitted the direct testimony of their witnesses and the exhibits to which their witnesses referred. On the date of this Response, both sides will also have submitted their rebuttal testimony and exhibits. Therefore, the only practical application of a Motion in Limine now would be to prevent Qwest from using the evidence in cross-examination or live rebuttal testimony. More important, the written direct and rebuttal testimony and exhibits Qwest has filed confirm that Ruby Ranch's speculations about Qwest's use of cost studies or evidence of Ruby Ranch's breaches of the Confidentiality Agreement are unfounded.

Thus, Qwest does not base its defenses to Ruby Ranch's challenges to the disputed rates or the requirement that Ruby Ranch carry insurance on the cost or conduct evidence that Ruby Ranch seeks to exclude from the hearing. Nevertheless, since Qwest may need to utilize cost study evidence or evidence about Ruby Ranch's breaches of the Confidentiality Agreement in cross-examination or rebuttal testimony in the hearing, the Motion in Limine should be denied for the following additional reasons.

Cost Study Evidence Qwest has provided the cost information for its rates, and Ruby Ranch is responsible for any delay in receiving the supporting cost studies.

Regarding cost study information, as stated in its summary judgment motion, Qwest's position is that it is not relevant to the issues for hearing because the Commission's Order governs the rates Ruby Ranch is challenging. Nevertheless, the Arbitrator may want to take judicial notice of the fact that those studies fully support the Order or confirm for the record that the cost studies refute Ruby Ranch's arguments about what Qwest's costs should be. Therefore, Ruby Ranch should not be able to use a motion in limine to create a blanket exclusion of this evidence.

The "support" for Ruby Ranch's position this evidence should be excluded is the assertion that Qwest has not provided its cost studies to Ruby Ranch; so Ruby Ranch will not have enough time before the hearing to be prepared to address that cost data. Ruby Ranch also asserts that, if Qwest had provided its cost studies earlier, then "the pricing issues would likely have been resolved months ago." Motion in Limine at 3. These arguments are flagrantly wrong.

In late May of 2001, Ruby Ranch contacted Qwest seeking to negotiate an interconnection agreement. As it does with any wholesale interconnection negotiation, Qwest provided Ruby Ranch with a template SGAT Agreement for review and discussion. The template was given to Ruby Ranch on June 1, 2001, and Qwest gave Ruby Ranch the exhibits to the template, which include prices for the various elements, via e-mail on June 11, 2001. The rates quoted to Ruby Ranch for the various elements were either approved by the Colorado Public Utilities Commission ("Commission") in Docket No. 96A-331T, or were proposed rates as developed in cost studies for use in an ongoing docket, i.e. Docket No. 99A-577T ("577T"). (The subloop quote preparation fee and subloop activation fee are found in the 577T cost studies). Ruby Ranch objected to a number of provisions and rates proposed in the SGAT Agreement, and, through negotiation, the parties were eventually able to resolve all Ruby Ranch's objections regarding rates except the two rates Ruby Ranch is challenging herethe rates for non-recurring subloop activation and for a quote preparation fee.

On December 21, 2001 the Commission issued an Order in the 577T docket ("Decision No. C01-1302") recommending slightly lower rates than those initially quoted to Ruby Ranch for the quote preparation fee and non-recurring subloop activation fee. Qwest relayed these reduced rates to Ruby Ranch, and as required by the Commission Rules, will true-up the remaining rates once a final Commission Order becomes effective.

Throughout the negotiations, Qwest has explained to Ruby Ranch that the quoted wholesale prices were based upon TELRIC (Total Element Long Run Incremental Cost) studies developed in compliance with the Telecommunications Act of 1996. The use of TELRIC averages is based on costs incurred in typical circumstances and cost projections. Ruby Ranch never requested copies of Qwest's confidential cost studies submitted to the Commission in Docket Nos. 96A-331T or 99A-577T, but rather Ruby Ranch argued that its special circumstances warranted reduced prices. Its rationale was that it should be relatively easy, and therefore inexpensive, for Qwest to activate and lease subloops to provide the SDSL service requested by Ruby Ranch. Furthermore, Ruby Ranch argued that Qwest had "spare" loops and related equipment it was not using so it would be better to have some income from that equipment rather than to let it go to "waste." In response, Qwest informed Ruby Ranch of its duty to charge all CLECs fair, non-discriminatory rates, which requirement necessarily prohibits preferential treatment of individual CLECs.

In early January, Ruby Ranch began for the first time to request Qwest's confidential cost studies submitted to the Commission in Docket Nos. 96A-331T or 99A-577T. Qwest's counsel told Ruby Ranch (in phone calls and via e-mails beginning on January 7, 2002) that, to see these confidential studies, Ruby Ranch would first need to comply with Commission Rule 16 by executing and filing the Commission-approved non-disclosure agreement. Ruby Ranch finally complied with that requirement on the date of this Response, January 24, 2002; so Qwest is today providing Ruby Ranch with copies of the pertinent portions of the confidential cost studies from Docket No. 99A-577T.

Thus, Ruby Ranch has long known the basis for Qwest's rates and how those rates have been affected by the Commission's Order. Ruby Ranch's own delay in complying with Rule 16 by filing a non-disclosure agreement is the reason for any delay in its receipt of the cost studies. Although Ruby Ranch should be able to read and to comply with the Commission's rules on its own, Qwest has repeatedly advised Ruby Ranch of the need to comply with the Rule if it wanted to review the cost studies. Therefore, Qwest should not be sanctioned based on the time Ruby Ranch has taken to obtain the data it is complaining about now.

Ruby Ranch's contention that it would have compromised on its assertions about Qwest's rates if Ruby Ranch had Qwest's cost data is improper speculation about what may have happened as part of compromise negotiations and is completely irrelevant to a motion in limine. Moreover, as demonstrated in Ruby Ranch's strident position in responding to Qwest's Motion for Summary Judgment and in Mr. Oppedahl's direct testimony, Ruby Ranch does not care about Qwest's costs or the rates the Commission has set because Ruby Ranch contends it will be cheaper for Qwest to provide services to Ruby Ranch. Nothing about Ruby Ranch's position based on its special circumstances would have been changed by earlier access to Qwest's cost data.

Therefore, while Qwest plans to defend the rates Ruby Ranch is challenging by referring to the rates the Commission set after long and careful consideration of TELRIC studies and average costs, rather than by repeating here the cost evidence submitted to the Commission, the Arbitrator should deny Ruby Ranch's motion in limine. It is a groundless attempt to prevent Qwest from presenting evidence that the Arbitrator may want to consider in response to Ruby Ranch's case.

Evidence of Ruby Ranch's breaches of the Confidentiality Agreement may be Relevant and that evidence should not be excluded.

Ruby Ranch's arguments concerning evidence of its past breaches of the parties' Confidentiality Agreement1 are likewise an attempt to unfairly limit Qwest's evidence. Again, no where in Qwest's direct or rebuttal testimony or exhibits is there any mention of the Confidentiality Agreement or any breach of that Agreement by Ruby Ranch. Nevertheless, since Mr. Oppedahl is the party who signed that Agreement for Ruby Ranch and is Ruby Ranch's only witness, his credibility will be at issue in the hearing. To the extent the Arbitrator believes evidence about Mr. Oppedahl's performance and breach of the Confidentiality Agreement is relevant to his credibility, then Qwest should be able to present such evidence. Further, Ruby Ranch is seeking through this proceeding to have an interconnection agreement on the terms Ruby Ranch is demanding. The Arbitrator may have good reason to believe that evidence about Ruby Ranch's performance of the Confidentiality Agreement is directly relevant to how Ruby Ranch would honor its obligations under an interconnection agreement.

Ruby Ranch's assertions about whether there was an agreement and whether or not Mr. Oppedahl breached that agreement raise, at most, factual disputes that cannot be resolved through a motion in limine. Ruby Ranch does not present a single legal or evidentiary position that would justify preventing Qwest from questioning Mr. Oppedahl or Qwest's own witnesses about the Confidentiality Agreement and Mr. Oppedahl's actions. In summary, the Arbitrator can best determine during the hearing whether or not evidence about the Confidentiality Agreement and any breach is properly admitted, and there is no reason to prejudge that issue now in Ruby Ranch's favor and in a way that prevents Qwest from presenting relevant, admissible evidence.

For the reasons considered above, Qwest respectfully requests the Arbitrator to enter an Order denying Ruby Ranch's Motion in Limine.

Dated this _____ day of January 2002.

QWEST CORPORATION

By______________________________________

Timothy M. Tymkovich, Esq.

John R. Paddock, Jr., Esq.

Hale Hackstaff Tymkovich, LLP

1675 Broadway, Suite 2000

Denver, Colorado 80202

303-592-8700

Winslow Boscawen, Esq.

Qwest Services Corporation

1005 17th Street, Suite 200

Denver, Colorado 80202

303-896-5675

CERTIFICATE OF SERVICE

The undersigned certifies that on this ____ day of January, 2002, a true and correct copy of the foregoing Qwest's Response Opposing the Motion in Limine was served via e-mail and facsimile and placed in pre-paid first-class mail properly addressed to the following

Carl Oppedahl

Ruby Ranch Internet Cooperative Association

c/o Oppedahl & Larson LLP

P. O. Box 5088

Dillon, CO 80435-5088

Facsimile(970)468-0104

carl@rric.net

G\USWEST\Ruby Ranch\Pleadings\Response Opposing Motion in Limine.wpd

January 23, 2002 (659pm)