1 1 BEFORE THE PUBLIC UTILITIES COMMISSION 2 OF THE STATE OF COLORADO 3 Docket No. 01B-493T 4 RUBY RANCH INTERNET COOPERATIVE ASSOCIATION, 5 Petitioner, 6 vs. 7 QWEST CORPORATION, 8 Respondent. 9 - - - - - - - - - - - - - 10 11 Pursuant to notice to all parties of 12 interest, the above-entitled matter came on for 13 hearing at 9:00 a.m., on January 31, 2002, at 1580 14 Logan Street, Office Level 2, Denver, Colorado, 80203, 15 before Administrative Law Judge Ken Kirkpatrick. 16 17 18 19 20 21 22 23 24 25 2 1 APPEARANCES 2 FOR RUBY RANCH CARL OPPEDAHL, ESQ. COOPERATIVE P.O. Box 5088 3 ASSOCIATION Alpine Bank Center Second Floor 4 246 Dillon Ridge Road Dillon, Colorado 80435 5 6 FOR QWEST TIMOTHY TYMKOVICH, ESQ. 1675 Broadway, Suite 2000 7 Denver, Colorado 80202 and 8 WINSLOW BOUSCAREN, ESQ. 1005 17th Street, Room 200 9 Denver, Colorado 80202 10 11 INDEX 12 WITNESSES PAGE 13 CARL OPPEDAHL Direct Examination by Mr. Oppedahl 30 14 WILLIAM EASTON Direct Examination by Mr. Tymkovich 58 15 Cross Examination by Mr. Oppedahl 63 Redirect Examination by Mr. Tymkovich 161 16 ROBERT J. HUBBARD Direct Examination by Mr. Tymkovich 173 17 Cross Examination by Mr. Oppedahl 174 Redirect Examination by Mr. Tymkovich 233 18 CARL OPPEDAHL Direct Examination by Mr. Oppedahl 243 19 Cross Examination by Mr. Tymkovich 246 20 21 22 23 24 25 3 1 EXHIBITS MARKED ADMITTED 2 Exhibit No. 1 29 40 Exhibit No. 2 43 40 3 Exhibit No. 3 43 40 Exhibit No. 4 43 40 4 Exhibit No. 5 43 40 Exhibit No. 6 43 40 5 Exhibit No. 7 43 40 Exhibit No. 8 43 40 6 Exhibit No. 9 43 40 Exhibit No. 10 43 40 7 Exhibit No. 11 43 40 Exhibit No. 12 43 40 8 Exhibit No. 13 29 40 Exhibit No. 14 43 40 9 Exhibit No. 15 43 40 Exhibit No. 16 43 40 10 Exhibit No. 17 43 40 Exhibit No. 18 43 40 11 Exhibit No. 20 43 40 Exhibit No. 21 43 40 12 Exhibit No. 24 43 40 Exhibit No. 25 59 63 13 Exhibit No. 26 59 63 Exhibit No. 27 59 14 Exhibit No. 28 59 63 Exhibit No. 29 173 174 15 Exhibit No. 30 167 Exhibit No. 31 197 198 16 Exhibit No. 32 209 Exhibit No. 33 242 243 17 Exhibit No. 34 242 243 Exhibit No. 35 259 57 18 19 20 21 22 23 24 25 4 1 A.L.J. KIRKPATRICK: Let's go on the 2 record, then. I would like to call Docket 01B-493T. My 3 name is Ken Kirkpatrick. I have been assigned this 4 matter by the commission. May I have the appearances, 5 beginning with Mr. Oppedahl. 6 MR. OPPEDAHL: Appearing -- 7 A.L.J. KIRKPATRICK: Be seated, if you 8 like. 9 MR. OPPEDAHL: Appearing for the Co-op, 10 Carl Oppedahl, as director of the Co-op. 11 A.L.J. KIRKPATRICK: Okay. Thank you, 12 Mr. Oppedahl. 13 MR. TYMKOVICH: Good morning, Your Honor. 14 Tim Tymkovich, outside counsel representing Qwest 15 Corporation. With me at counsel table is Winslow 16 Bouscaren with Qwest, and we also have Alice 17 Bettencourt, a legal assistant, assisting during the 18 hearing this morning. Thank you. 19 A.L.J. KIRKPATRICK: Okay, Mr. Tymkovich. 20 I have several preliminary matters I would like to 21 address. First of all, did the parties have their 22 face-to-face negotiating session that was agreed to at 23 the prehearing conference, Mr. Oppedahl? 24 MR. OPPEDAHL: No, Your Honor. It did 25 not take place. We conferred by telephone, and the 5 1 results of our telephone call gave us the impression 2 that it would not be a good use of our time to attempt 3 to meet in person. 4 A.L.J. KIRKPATRICK: Why did you meet by 5 telephone? There was an agreement made, and I 6 specifically asked the parties to meet face to face. 7 Parties agreed to do that. You were going to come 8 down, for the class you teach at DU, and coordinate 9 with that. What happened? 10 MR. OPPEDAHL: I hesitate to go into 11 detail, if Your Honor doesn't want to hear about 12 details of settlement discussions. 13 A.L.J. KIRKPATRICK: I don't want to hear 14 details. I want to know -- what the parties presented 15 to me, that they would meet face to face, and then they 16 didn't. 17 MR. OPPEDAHL: What I heard from the 18 other side was that none of their positions were likely 19 to change, and as I am a volunteer and have to take 20 time off from work to do these things, I didn't want to 21 spend the time and lose the revenue from my day job. 22 A.L.J. KIRKPATRICK: Okay. 23 Mr. Tymkovich. 24 MR. TYMKOVICH: We had ongoing 25 conversations, since the prehearing conference, by 6 1 telephone. We discussed many of the issues, and I 2 think that we had some back and forth on several of the 3 issues that are pending today. I think both sides, I 4 believe, were willing, able and ready to have a 5 face-to-face meeting, but we felt that, given some of 6 the impasse on the costing issues and insurance, that 7 it would not be fruitful. 8 So I think that, although we had 9 established the time on January 16th to do it, we 10 concluded that, the day before that meeting was 11 scheduled, not to go forward with it because we didn't 12 think we would be able to make progress, based on our 13 telephone conversation. 14 A.L.J. KIRKPATRICK: Perhaps I wasn't as 15 emphatic as I had intended. I didn't make it a 16 requirement in the order, so there was technically no 17 requirement. I relied on the representation of the 18 parties. I do think that face-to-face meetings are 19 more productive than telephone meetings. But I guess 20 that's my fault, and I will learn from that. 21 Let's move onto the motion for summary 22 judgment filed by Qwest. As I had indicated at the 23 prehearing conference, I am not going to make a ruling 24 on that. I will transmit it to the commission. There 25 was a response made. I think the parties' positions 7 1 are set forth and that the commission will consider it. 2 Next matter is Ruby Ranch's exhibits. I 3 am a little confused, Mr. Oppedahl. There's several 4 versions of your exhibit lists that were filed, and due 5 to the facsimile filing, the dates that -- the 6 commission sometimes gets juxtaposed as to which filing 7 was made on what date. Did you intend to introduce all 8 of these E-mails as exhibits, or was that an erroneous 9 filing and the correct filing does not include those 10 exhibits -- those E-mails? Can you clarify that for 11 me? 12 MR. OPPEDAHL: Our exhibits -- there's 13 one series of exhibits that starts with about the 14 letter K or L, and runs down to about B-2 or C-2. And 15 that series of exhibits is mostly E-mails and letters 16 going in two directions between the parties. Those are 17 there because we wanted, to the extent possible, to 18 disclose the advanced exhibits that we thought might be 19 needed in examination of Qwest's witnesses today. I 20 don't know whether all of them will be needed. My best 21 guess, it will turn on two or three of them will be 22 needed. I would move their admission into evidence 23 only as-needed, and on a one-or-two-exhibits-at-a-time 24 basis. 25 A.L.J. KIRKPATRICK: So, the rest of the 8 1 exhibits, which I have as A to K, which you then 2 renumbered CO-1 through CO-21, are those direct 3 exhibits that you will be introducing in your direct 4 testimony? 5 MR. OPPEDAHL: Yes, when I take the stand 6 and when I formally adopt the testimony that was 7 prefiled for me, I would also be moving admission of 8 those exhibits that came along with the prefiled direct 9 and reply testimony. 10 A.L.J. KIRKPATRICK: Okay. The reply 11 testimony was CO-12 through 22, as I have it. 12 MR. OPPEDAHL: Yes. And I would be 13 moving that admission, along with the reply testimony. 14 There are also pictures, approximately D-2 through N-2, 15 which were exhibits, which we identified to Qwest on 16 Tuesday of this week, that we would use, if necessary, 17 in cross examination of Mr. Easton, and perhaps, if I 18 found it necessary to take the stand -- I am sorry, did 19 I say Mr. Easton? Mr. Hubbard, and if I found it 20 necessary to take the stand in connection with some of 21 the issues Mr. Hubbard raised, I would be moving 22 admission of those exhibits. They were provided to 23 Qwest earlier this week. 24 A.L.J. KIRKPATRICK: Okay. I think I am 25 clear on that. Next matter. On page 29 of 9 1 Mr. Oppedahl's direct testimony, there is reference to 2 a demonstration to be made at hearing. I presume 3 that's what some of this paraphernalia is. 4 MR. OPPEDAHL: Yes, sir, Your Honor. 5 A.L.J. KIRKPATRICK: What exact 6 demonstration did you have in mind? 7 MR. OPPEDAHL: I will be turning -- this 8 is the actual DSLAM that the Co-op will be using, if 9 and when the Co-op is able to launch service; that is 10 to say, if and when we become able to rent subloops 11 from Qwest. We'll be turning it on, connecting it up 12 to the SDSL modems with -- well, the modems are already 13 connected. The two modems will establish connection 14 with the DSLAM. We then have a computer which will be 15 acting as the Web server. This computer will be acting 16 as a computer that's visiting that Website. 17 We'll be transferring a file over the DSL 18 system, and, basically, because of the testimony by 19 Qwest that this stuff is very dangerous -- words 20 including "injury" and "death" appear in Qwest's 21 papers -- we'll be demonstrating that the voltages 22 involved are very low and the demonstrative pieces that 23 make up this display will probably also be used in 24 cross examination of Qwest's witnesses, who talk about 25 harm to Qwest's network arising out of the use of the 10 1 DSL system. 2 A.L.J. KIRKPATRICK: What will this 3 demonstrative evidence add to your written testimony, 4 which, again, we have not in evidence, but you testify 5 to the voltages that is going to be transmitted across 6 the lines. What is this whole demonstration going to 7 add to that? 8 MR. OPPEDAHL: I will be pointing out 9 places where the metal-sheathed cable does or does not 10 make connections to the things at two ends. My 11 feeling -- 12 A.L.J. KIRKPATRICK: Again, what does it 13 add to your written testimony? You have -- you 14 testified to the point connection, haven't you? 15 MR. OPPEDAHL: No. There were new things 16 introduced by Mr. Hubbard's testimony last Thursday, 17 for the first time, involving the metal sheath and 18 cable and how it contributes to risk of injury and 19 death. And it will be necessary for me to point to 20 such cable. That black loop of cable there is the kind 21 of cable that Mr. Hubbard was talking about, and I 22 would be pointing to different parts of the cable and 23 measuring voltages in different places, and so on. So, 24 some of it is -- fortuitously ends up being helpful in 25 responding to Mr. Hubbard's testimony prefiled last 11 1 Thursday. 2 MR. TYMKOVICH: Your Honor -- 3 A.L.J. KIRKPATRICK: Mr. Tymkovich. 4 MR. TYMKOVICH: Thank you, Your Honor. I 5 was going to object at the point that the demonstration 6 was offered on really two grounds. One, I think it's 7 cumulative. Based on the prefiled testimony, it's 8 quite clear about Mr. Oppedahl's position on the 9 technical issues in the case. It's also not relevant, 10 because the two issues here are the costing of the 11 subloop and quote preparation fee and the need for 12 general liability insurance. I think a demonstration 13 having to do with a DSLAM slam that may or may not go 14 in the barn up there has nothing to do with the Qwest 15 cross-connect box that is not anywhere near here. And 16 I don't see that there's really any relevancy to this 17 kind of demonstration to the two issues that are before 18 the commission. So, on those two grounds, I think it 19 would be unhelpful to the commission, and we're going 20 to ask that it not be allowed to be offered. 21 MR. OPPEDAHL: If I may. 22 A.L.J. KIRKPATRICK: I have one other 23 question, then you can respond to my other question, 24 Mr. Oppedahl. Demonstrative evidence presumably is to 25 assist the trier-of-fact in understanding the 12 1 testimony. This case is postured a little bit 2 unusually in I am not going to be making the initial 3 decision. The commissioners are going to be making the 4 decision. The commissioners are not present in the 5 hearing room today to see any of the demonstration. 6 The only thing that they are going to be able to see is 7 the transcript by which -- where someone is describing 8 what transpires. 9 Then the question is, if everything can 10 adequately be explained through the spoken word, what's 11 the need for the demonstration? So, if you want to 12 respond to that, as well as Mr. Tymkovich's point. 13 MR. OPPEDAHL: Yes, Your Honor. As to 14 Mr. Tymkovich's point, with all respect, Qwest can't 15 have it both ways. We just heard from Mr. Tymkovich 16 that the DSLAM in the barn would be distant from the 17 cross box, and how, then, it is irrelevant. Qwest 18 witnesses talk about how this DSLAM in the barn could 19 cause a fire to damage Qwest equipment. That 20 allegation does sound ridiculous, given Mr. Tymkovich 21 pointing out the barn is quite far from the cross box. 22 If they are going to say the DSLAM can damage the cross 23 box, I think it makes advocacy on the part of the Co-op 24 regarding the DSLAM quite relevant. 25 If Mr. Tymkovich is willing to stipulate 13 1 that nothing that happens in the barn could harm 2 Qwest's property, and if they will remove -- strike 3 from their presentation talk of injury and death, that 4 would probably make it so that the point I am going to 5 make with these cables and DSLAM unnecessary. 6 To try to address Your Honor's additional 7 question, I understand that the commissioners sitting 8 en banc will be the decision-makers in this case. They 9 will not, of course, be here to see the demonstration. 10 I do have a digital camera here, and my intention is to 11 attempt to take photographs of this stuff. And later, 12 when the transcript comes out, assuming that Your Honor 13 asks for supplemental papers, we would use supplemental 14 papers which would tag things in the pictures with 15 things referenced in the transcript, and that might 16 help the reader of an otherwise dry transcript to be 17 able to have a visual aide. 18 A picture really is worth a thousand 19 words, in many cases, especially where, as I think will 20 become clear to those who are with us here today, in 21 person, where some of Qwest's witnesses are saying 22 things that end up not making sense, but seeing that it 23 doesn't make sense is really hard to do unless you 24 stand there and actually say, oh, well, this doesn't 25 really touch this; therefore, there isn't an electrical 14 1 contact between these two things. 2 And even though I self-selected into the 3 field of law, where I assume anything worth saying can 4 be said purely in words, and the fact of pointing out 5 and treating one thing, and noticing this doesn't touch 6 that, is, I think, an important part of having a clear 7 understanding of what Qwest's witnesses are saying and 8 which things are correct and which things are 9 incorrect. 10 A.L.J. KIRKPATRICK: How long do you 11 anticipate your demonstration will take? 12 MR. OPPEDAHL: My direct demonstration 13 would be 10 minutes, maximum, probably more like five 14 minutes. And then, when Qwest's witnesses are on the 15 stand, we might not have to turn on the equipment, and 16 it would just be a matter of walking to the table and 17 pointing to certain things, and that would be for the 18 duration of whatever number of questions it took to 19 cover a particular point. 20 A.L.J. KIRKPATRICK: I don't think you 21 have adequately answered my concerns, my concerns about 22 the fact the commissioners aren't here. You want to 23 take pictures. Pictures are subject to manipulation, 24 not that you would -- "manipulation" is a poor word. 25 Depending on the framing, the viewing, the angle, 15 1 pictures can tell stories that are accurate. Pictures 2 can, you know, there's no depth perception, for 3 example, in a two-dimensional photograph that there is 4 in a three dimensional viewing. So, you -- and the 5 question of whether size and perspective don't always 6 adequately translate from three dimensions to two 7 dimensions. So, when you talk about taking photographs 8 and submitting them later, I get concerned about if 9 these are going to be photographs that would be agreed 10 upon by all parties as being an accurate representation 11 of what they intend to represent. So, I don't want -- 12 I don't really think I can go that route. 13 As far as the demonstration, I am just 14 transmitting the file. I think it's clear from your 15 testimony what the various pieces of equipment do, what 16 voltages they do it under, where they connect. So, I 17 am not going to allow the demonstrative on direct. 18 Now, on redirect, or on supplement testimony that you 19 want to use to address the testimony of Qwest about 20 sheathing, cabling, potential grounding problems, I 21 think that there may be something to be gained by that, 22 if you are willing to leave the cable as an exhibit. 23 MR. OPPEDAHL: Yes, Your Honor. 24 A.L.J. KIRKPATRICK: Do you have a piece 25 of cable or can you trim off a portion? I see you have 16 1 quite a loop there of cable. 2 MR. OPPEDAHL: We can leave a portion of 3 it, Your Honor. 4 A.L.J. KIRKPATRICK: Okay. 5 MR. OPPEDAHL: I also respectfully 6 suggest, Your Honor, that to the extent photos might 7 not always show how something looked, instead of having 8 people saying, "The record will reflect that the 9 witness pointed to this," and that might sometime not 10 be as satisfactory as one hopes. So, I guess all I can 11 do is undertake for Your Honor to assist in making the 12 best record possible for the commission, which I take 13 it will be almost entirely in the nature of words in 14 the transcript. 15 A.L.J. KIRKPATRICK: That's typically the 16 way we work here. And, again, if there were something 17 go be gained, but the way you described it, merely 18 transmitting a file across equipment, which is 19 analogous to or the same as the equipment that you 20 intend to install, if and when you get service, I don't 21 see there's anything to be gained by it. So, I have 22 made my ruling on that. 23 Let's move onto procedural matters. 24 Generally I do not allow examination beyond redirect. 25 However, if new material comes up on redirect, which 17 1 normally it would not, any party may request additional 2 examination, and I would consider it and authorize it, 3 if warranted. Witnesses that have filed more than one 4 round of testimony will be subject to cross only once 5 on both. I believe there's two witnesses that filed 6 two rounds of testimony. This is in accordance with 7 normal commission procedures. So there will be no up 8 for direct, cross, down and then back up for cross on 9 reply or rebuttal testimony. 10 Concerning confidential information, I 11 need to be informed in advance of and at the conclusion 12 of any confidential portion, if any, so that I can take 13 the appropriate precautions. I may ask now, do the 14 parties anticipate any confidential testimony or 15 examination? Mr. Tymkovich? 16 MR. TYMKOVICH: We do not anticipate 17 that, Your Honor. 18 MR. OPPEDAHL: Depending on answers 19 elicited from Mr. Easton, we might find it necessary to 20 go into such a phase, and I understand Your Honor's 21 instructions: We should give warning before we go into 22 such subject matter. 23 A.L.J. KIRKPATRICK: Okay. And at the 24 conclusion of any confidential portions so that I 25 don't -- 18 1 MR. OPPEDAHL: In fact, I have marked my 2 notes, "start confidential," "end confidential." So, 3 hopefully I can do that faithfully. 4 A.L.J. KIRKPATRICK: Okay. I would just, 5 lastly, if you do have anything like that, if you can 6 group it together so we're not switching back and forth 7 from confidential. I understand it's not always 8 possible, but to the extent that you can do that -- 9 MR. OPPEDAHL: Yes. 10 A.L.J. KIRKPATRICK: -- I would 11 appreciate it. Those are all of the preliminary 12 matters that I had. Any preliminary matters on behalf 13 of the parties? 14 MR. TYMKOVICH: No, Your Honor. 15 MR. OPPEDAHL: Will Your Honor want 16 opening statements or closing arguments today? 17 A.L.J. KIRKPATRICK: Typically, what the 18 commission asks for is written closing statements of 19 position. And I had anticipated that I would, although 20 usually I wait till the end of the proceedings, but the 21 standard practice is that we ask for written statements 22 of position, which sort of takes the place of closing 23 argument. 24 As far as opening, the commission does 25 allow them, short ones. They are not standard, but if 19 1 there's something to be gained, we do allow them. If 2 parties want, I will certainly consider them. But they 3 are not required. Do you want to make an opening 4 statement, Mr. Oppedahl? 5 MR. OPPEDAHL: No. It was really just a 6 matter of informing myself about the usual practice in 7 this forum. 8 A.L.J. KIRKPATRICK: Not normally 9 required. 10 MR. OPPEDAHL: Yes, Your Honor. 11 A.L.J. KIRKPATRICK: Okay. Any other 12 preliminary matters? 13 MR. TYMKOVICH: No, Your Honor. 14 A.L.J. KIRKPATRICK: Okay. In that case, 15 then let's proceed with testimony on behalf of Ruby 16 Ranch. Mr. Oppedahl. 17 MR. OPPEDAHL: Yes. Perhaps this is a 18 preliminary matter, in which case I should have 19 mentioned it a minute ago. Your Honor, we have a 20 number of discovery responses from Qwest that are 21 admissions in response to requests for admission. I 22 would like to ask for Your Honor's guidance as to how 23 those should become part of the formal record. For 24 example, should I read them, publish them to the 25 courtroom and have them taken down by the court 20 1 reporter? If Your Honor prefers, perhaps we would file 2 them with some paper with the commission after today's 3 hearing, with the understanding that, then, that they 4 would become part of our direct case, even though they 5 weren't presented before we formally rested. 6 A.L.J. KIRKPATRICK: You don't have them 7 in paper form today? 8 MR. OPPEDAHL: We have them in paper 9 form, but I imagine that if I simply added them in, I 10 would need to put on a sheet with a docket number on 11 it, and probably other language, depending on what Your 12 Honor though was appropriate, and whatever that sheet 13 is, I don't have that. 14 A.L.J. KIRKPATRICK: We have a stamp. We 15 can stamp the exhibits and put an exhibit number on it, 16 the docket number. 17 MR. TYMKOVICH: Your Honor -- excuse me, 18 Your Honor. I would object to any additional exhibits 19 at this point. Mr. Oppedahl had the opportunity to put 20 those in, either in the direct or rebuttal testimony, 21 you know, just the wholesale dumping of discovery into 22 the record I don't think is appropriate. It's a 23 question of evidence and how it is woven into the 24 testimony. I certainly wasn't prepared to file, you 25 know, additional discovery, based on what he did, and I 21 1 can't do it because I don't know which discovery he is 2 going to proffer to the court. So I would object to 3 that. He had an opportunity to do that. It wasn't 4 listed as an exhibit, and I don't think -- I just don't 5 think it's proper, on the day of trial, to dump in a 6 bunch of new exhibits. 7 MR. OPPEDAHL: These aren't exhibits. 8 The purpose of the request to admit is to eliminate 9 issues at trial. These were simply party admissions by 10 Qwest, and I do desire to put them into the record, and 11 in whatever fashion is acceptable to Your Honor. 12 A.L.J. KIRKPATRICK: They are all 13 requests for admissions? 14 MR. OPPEDAHL: Yes. 15 A.L.J. KIRKPATRICK: I will allow them 16 in. 17 MR. TYMKOVICH: Your Honor, would I have 18 a chance to, then, to review what he puts in and see if 19 there's requests for admission that Qwest had proposed 20 to Ruby Ranch that might be responsive or appropriate 21 to supplement, then? 22 A.L.J. KIRKPATRICK: Sure. One that you 23 have already posed. 24 MR. TYMKOVICH: Maybe -- 25 A.L.J. KIRKPATRICK: Maybe I didn't hear 22 1 you. 2 MR. TYMKOVICH: Yes. We have had 3 requests for admission directed to Ruby Ranch also that 4 may or may not be necessary, going on what Mr. Oppedahl 5 wants to put in the record, his requests for 6 admissions. 7 A.L.J. KIRKPATRICK: Okay. You have an 8 opportunity to put those in. 9 MR. OPPEDAHL: Point of clarification, 10 Your Honor. I want to make sure I hadn't misheard. 11 It's not that Qwest wants to be able to change what 12 they said in their answer to the admission. It's that 13 they would want to put in or have the option to put in 14 a response that we gave to requests to admit. 15 A.L.J. KIRKPATRICK: That's my 16 understanding. 17 MR. OPPEDAHL: Yes, Your Honor. So, 18 should I assume, Your Honor, I should not just read 19 these in the record. I should just put them in. 20 A.L.J. KIRKPATRICK: I want them in 21 written form. If you don't have them in writing 22 today -- you say you do have them. You don't have the 23 label. 24 MR. OPPEDAHL: I don't have any label or 25 caption or anything of that kind. 23 1 A.L.J. KIRKPATRICK: We can stamp them. 2 MR. TYMKOVICH: Judge, one follow-up. 3 Some of those, I don't believe, would be relevant. 4 They might not be admissible for other reasons. They 5 may be cumulative. I don't know that I am going to 6 have an opportunity to review them and object to them 7 on the record. So, procedurally I am wondering how you 8 would want to handle that. 9 A.L.J. KIRKPATRICK: How many are there, 10 Mr. Oppedahl? 11 MR. OPPEDAHL: Approximately 30 12 admissions. Oh, and I have had a further disability in 13 that I just have the one set here, and for me to file 14 one with the commission, I would want to have two sets 15 and a certificate of service, and give to Qwest what I 16 am filing with the commission. I don't have with me 17 now the paper that would let me do that service as well 18 as filing all at once. 19 A.L.J. KIRKPATRICK: How many pages have 20 you got, sir? 21 MR. OPPEDAHL: One page per admission. 22 A.L.J. KIRKPATRICK: Thirty pages. 23 That's the way they came from Qwest? 24 MR. OPPEDAHL: Yes. 25 A.L.J. KIRKPATRICK: We can make copies 24 1 for you. We'll make some copies at the break, and give 2 copies to Mr. Tymkovich, and maybe, if we go that long, 3 you can review them over lunch hour. And maybe we can 4 address questions of relevancy. 5 MR. OPPEDAHL: You know what, Your Honor. 6 I misspoke. I have three copies here. I have three 7 sets. I didn't realize I did. So, in fact, I can give 8 you -- a set to Mr. Tymkovich right now. 9 A.L.J. KIRKPATRICK: Okay. Why don't you 10 do so. 11 MR. OPPEDAHL: That might help. 12 A.L.J. KIRKPATRICK: Okay. Why don't you 13 give me a copy now. And then we'll make sure that 14 there's some time today for Mr. Tymkovich to review 15 these, and it may have to be over the lunch hour, or we 16 may have to take a short break. Looks like the 17 requests are fairly short, and the answers are short. 18 I don't think it's anything you haven't seen before, 19 Mr. Tymkovich. So, it shouldn't take you very long to 20 review them for relevancy purposes. 21 MR. TYMKOVICH: Thank you. 22 A.L.J. KIRKPATRICK: Okay. So we'll just 23 hold those for now with the idea we're going to put 24 them into the record a little bit later. 25 I did make up a little exhibit sheet that 25 1 covers some of the exhibits that we will be looking at 2 today. If you will try -- and this is what I intend -- 3 to at least start out identifying the exhibits -- 4 (Discussion off the record.) 5 A.L.J. KIRKPATRICK: I realize there's 6 additional exhibits that are not included on this. 7 This will get us started. Also, there may have been 8 some omissions. I sort of hurriedly typed this up 9 yesterday. If there's any errors, bring them to my 10 attention. Why don't we commence, Mr. Oppedahl? 11 MR. OPPEDAHL: Yes. 12 A.L.J. KIRKPATRICK: Let me ask you this, 13 Mr. Oppedahl. Do you have -- the commission's 14 procedures are somewhat byzantine, perhaps, but do you 15 have an additional copy of your testimony and exhibits 16 for formal identification as exhibits in this 17 proceeding in addition to what you filed? 18 MR. OPPEDAHL: I think I have one copy, 19 only one of my direct and one copy -- only one of my 20 reply testimony. 21 A.L.J. KIRKPATRICK: Including exhibits? 22 MR. OPPEDAHL: No. I am sorry. I don't. 23 Well, we have a full -- several copies of every one of 24 the exhibits, the CO exhibits. So we would be able to 25 distribute those today and file them and give them to 26 1 Qwest. 2 A.L.J. KIRKPATRICK: Well, under normal 3 conditions, technically, when you introduce an exhibit, 4 in addition to the prefiling, you should bring one for 5 my use, one for the witness, which is the official 6 exhibit, and one for each of the parties. However that 7 rule is subject to modification, and, typically, the 8 other side already has the exhibits. In a case where 9 the ALJ is presiding, I already have sufficient copies, 10 but we do need one clean copy, which is -- which 11 becomes the sort of official exhibit and part of the 12 record, given the fact that parties don't always 13 introduce the same exhibit that they had prefiled, 14 there's modifications and so forth, or they choose not 15 to introduce an exhibit which they endorse before 16 hearing. 17 So, we do need a copy of each exhibit and 18 the testimony that will become the exhibits in this 19 proceeding. So, are you able to -- 20 MR. OPPEDAHL: We have at least three 21 copies of every exhibit, so we can certainly fulfill 22 that procedure with respect to all of the exhibits. 23 A.L.J. KIRKPATRICK: Including your 24 testimony, which you have identified. 25 MR. OPPEDAHL: I apologize to Your Honor; 27 1 that I don't think we have more than one copy of the 2 testimony. 3 A.L.J. KIRKPATRICK: Will the reporter 4 hand those out to each of the parties? 5 One copy is sufficient, given the fact 6 that there's only one other party. I have a copy of 7 your testimony. We just need one copy of your 8 testimony, one copy of each exhibit. Those are the 9 ones we'll stamp, become the official exhibits. 10 Maybe I will throw in a commercial at 11 this point. If you find the commission's procedures 12 cumbersome, the commission did just open a rulemaking 13 docket concerning the rules of practice and procedure. 14 I invite everyone to participate in that docket, and 15 make their comments known, and positions, for the 16 commission. 17 MR. OPPEDAHL: Your Honor, I have a set 18 of prefiled direct. Prefiled reply, I can't find, but 19 I can print it in two or two or three minutes on this 20 printer. I apologize to Your Honor. I wasn't aware we 21 would need it, but I could print it right now. It 22 would take two or three minutes. 23 A.L.J. KIRKPATRICK: Of which? 24 MR. OPPEDAHL: I have the direct but the 25 reply I don't seem to have a printed copy of. 28 1 A.L.J. KIRKPATRICK: Don't have the 2 reply. 3 MR. OPPEDAHL: My apologies, Your Honor. 4 A.L.J. KIRKPATRICK: Do you have a 5 working copy that we can sort of work from? Do you 6 have a marked up copy? 7 MR. OPPEDAHL: Only in the computer. I 8 am very sorry. I keep looking to see if I am mistaken, 9 and perhaps I do actually have a printout of it. I 10 don't know that I do. 11 A.L.J. KIRKPATRICK: Okay. 12 MR. TYMKOVICH: Your Honor, maybe we 13 can help. 14 A.L.J. KIRKPATRICK: Do you happen to 15 have a clean copy? 16 MR. TYMKOVICH: We might be able to help. 17 A.L.J. KIRKPATRICK: Mr. Tymkovich, 18 continue. He has his direct. We are just talking 19 about his rebuttal, the reply testimony. What about 20 exhibits attached? 21 MR. OPPEDAHL: We have all of the 22 exhibits here. 23 A.L.J. KIRKPATRICK: So, it's just the 24 testimony itself. 25 MR. TYMKOVICH: Your Honor, we have an 29 1 extra. 2 A.L.J. KIRKPATRICK: Do you have an 3 extra? Can I see it? 4 MR. TYMKOVICH: It's a hard copy of 5 what -- I think the hard copy that was filed here. 6 A.L.J. KIRKPATRICK: Okay. Looks to be a 7 copy. Do you want to look at this, make sure that -- 8 MR. OPPEDAHL: Yes, Your Honor. This 9 looks like what's needed. 10 A.L.J. KIRKPATRICK: Okay. 11 (Whereupon Exhibit Nos. 1 and 13 were marked 12 for identification.) 13 A.L.J. KIRKPATRICK: Are we ready to -- 14 before you get -- you got your exhibits under there 15 too, Mr. Oppedahl? 16 MR. OPPEDAHL: We're just assembling them 17 just this moment. Maybe I would start with the 18 transcripts. Maybe, by the time I finish talking about 19 the transcripts, we might have the exhibits bundled. 20 A.L.J. KIRKPATRICK: Transcripts, you 21 mean your written testimony. 22 MR. OPPEDAHL: I'm talking about the 23 written testimony. 24 A.L.J. KIRKPATRICK: Basically I would 25 just ask you to adopt the testimony. 30 1 MR. OPPEDAHL: Yeah. 2 A.L.J. KIRKPATRICK: Okay. 3 (Whereupon Carl Oppedahl was sworn.) 4 A.L.J. KIRKPATRICK: Okay. State and 5 spell your name for the record, please. 6 THE WITNESS: Carl Oppedahl, C-a-r-l, 7 O-p-p-e-d-a-h-l. 8 A.L.J. KIRKPATRICK: Okay. What's 9 your -- why don't you proceed with adoption of your 10 prefiled direct and reply testimony. 11 THE WITNESS: I have in front of me what 12 have been marked as Exhibits 1 and 13. Exhibit 1 is 13 entitled, "Prefiled Direct Testimony of Carl Oppedahl 14 on Behalf of the Ruby Ranch Internet Cooperative 15 Association." This is the prefiled testimony which I 16 filed on behalf of the Co-op on the 17th of January, 17 2002 -- well, served upon Qwest on that day and filed 18 the following day, the 18th. 19 I should mention that when I first filed 20 this on -- I made a mistake. I didn't pay attention to 21 the part of the rules that say that the exhibits had to 22 have Arabic numerals, and they were lettered A through 23 K, or something like that. A couple days later, I saw 24 my mistake, and I refiled the testimony this time using 25 exhibit numbers that had Arabic numerals. I, also, I 31 1 see to my embarrassment that this copy that I pulled 2 out of my folder is a -- my prefiled direct -- is a 3 copy that's dated from when I wrongly used the letters 4 rather than Arabic numerals. In fact, what's in front 5 of me is Exhibit 1, which came out of my box of papers, 6 doesn't have the Arabic numerals. I am sorry. I saw 7 this and assumed that I had the correct prefiled. 8 A.L.J. KIRKPATRICK: That's fine. Let's 9 not worry about that, Mr. Oppedahl. 10 THE WITNESS: Okay. I here formally 11 adopt the testimony given in this prefiled testimony as 12 if I had given it under oath today. 13 Also, in front of me as Exhibit 13 is a 14 document entitled, "Prefiled Reply Testimony of Carl 15 Oppedahl on Behalf of the Ruby Ranch Internet 16 Cooperative Association". This copy was kindly 17 provided by Qwest just earlier today. This is 18 testimony that I, on behalf of the Co-op, served upon 19 Qwest on the 24th of January, 2002, and filed with the 20 Co-op the following day, the 25th of January. I hereby 21 adopt this testimony as well as if I had given it today 22 under oath. And, in connection with this, then I 23 intend to address the exhibits that were mentioned in 24 these two pieces of prefiled testimony. 25 With Your Honor's permission, I will take 32 1 a moment and see how we are with having the exhibits 2 assembled. 3 A.L.J. KIRKPATRICK: All right. 4 THE WITNESS: What I have here, Your 5 Honor, are three sets of the exhibits that were 6 mentioned in the prefiled testimony of Exhibits 1 and 7 13. The three bundles of exhibits I have here are each 8 numbered CO-1 through CO-22. I will give a set to 9 Mr. Tymkovich. There you go. If I understand, Your 10 Honor, you would like to have set of these yourself 11 now? 12 A.L.J. KIRKPATRICK: Well, I have a set 13 that I have been working from. The rules require that 14 you provide me one. I guess I wasn't clear. I already 15 have a set, so you don't need to give me another set. 16 THE WITNESS: So, I should give a set of 17 these to the reporter, then, to be part of the official 18 record. 19 A.L.J. KIRKPATRICK: And to be stamped. 20 Sometimes it's at the top and sometimes at the bottom. 21 We can stamp them later. 22 THE WITNESS: I should mention that one 23 or two -- I think if one were to go through these 24 exhibits from top to bottom, one or two of the exhibits 25 aren't really there. Exhibit CO-20 for example, is the 33 1 DSLAM sitting on the table there, and the piece of 2 paper is just a placeholder representing what was going 3 to be that exhibit. I am in the position where the 4 DSLAM is needed to provide the actual service to people 5 in the neighborhood, and during the duration of this 6 hearing, the DSLAM sitting on this table represents 7 lost service for some people in the neighborhood. That 8 is to say, when the hearing is over, I need to put it 9 in my car and take it back up to our neighborhood. I 10 would not be able to leave it with the commission, and 11 I would -- 12 A.L.J. KIRKPATRICK: Okay. Can you take 13 a picture of it with your camera and print out an 14 exhibit? 15 THE WITNESS: Yes, I will do that. 16 A.L.J. KIRKPATRICK: All right. Any 17 objections? 18 THE WITNESS: In fact, one of the other 19 exhibits shows a photograph. 20 A.L.J. KIRKPATRICK: Any objection to 21 that, Mr. Tymkovich? 22 MR. TYMKOVICH: No, Your Honor. 23 A.L.J. KIRKPATRICK: Taking pictures of 24 the DSLAM? 25 THE WITNESS: If I may, Exhibit CO-4 is a 34 1 photograph of this very DSLAM, and so perhaps, by some 2 statement on my part into the record, I could say what 3 I just said. Exhibit CO-4 is a photograph of the 4 DSLAM. 5 MR. TYMKOVICH: Then I don't think the 6 other one would be necessary. 7 A.L.J. KIRKPATRICK: We don't need a 8 second photo. 9 THE WITNESS: Yes, Your Honor. I hereby 10 move the admission of these exhibits into the record. 11 A.L.J. KIRKPATRICK: Except for CO-20. 12 There's nothing to CO-20? 13 THE WITNESS: Let me look quickly and see 14 if there are others besides CO-20 that also don't 15 really belong on the list. 16 A.L.J. KIRKPATRICK: All right. 17 THE WITNESS: We may be able to leave out 18 some others. 19 A.L.J. KIRKPATRICK: Excuse me. Off the 20 record. 21 (Discussion off the record.) 22 THE WITNESS: Exhibit CO-17 is listed as 23 a 100-pair screw terminal block. This is an item which 24 the Co-op requested be produced by Qwest in this 25 proceeding. Qwest objected to providing such terminal 35 1 block. As a consequence, we don't have it here in the 2 hearing room. So, the placeholder piece of paper for 3 CO-17, I guess, stands for something that isn't here. 4 It might be just as well to leave out CO-17. 5 A.L.J. KIRKPATRICK: Okay. 6 THE WITNESS: Okay. Exhibit CO-20 we 7 just talked about. That's the DSLAM. Exhibit CO-21 8 refers to an SDSL modem. There are two of them on the 9 table here. I would be happy to allow Qwest to look at 10 them in person, if it would be helpful. I will mention 11 as well that there are photographs of the SDSL modems 12 in Exhibit CO-4, and I would suggest that if a 13 photographic record is needed, Exhibit CO-4 would serve 14 that purpose. That would mean that the piece of paper 15 labeled, "CO-21," was a placeholder for the modem 16 itself. It probably need not go officially into the 17 record. 18 A.L.J. KIRKPATRICK: All right. They -- 19 we finished with Exhibit CO-22. So we have Exhibits 20 CO-1 through CO-22, excepting 20, 21 and 17. And those 21 exhibits, I see, are the ones that you moved to be 22 entered into the record. The last one was 22? 23 THE WITNESS: Yes, Your Honor. 24 A.L.J. KIRKPATRICK: CO-22. Okay. 25 Again, under the hearing exhibit numbering system which 36 1 I have transformed some of your numbers, it didn't 2 quite correspond to the CO. So, under the hearing 3 exhibit key, that would be Exhibits 1 through -- I am a 4 little confused, okay. One through 18, and then 20, 5 21, and 24. 6 THE WITNESS: I am sorry, Your Honor. I 7 was trying to follow from the exhibit number. 8 A.L.J. KIRKPATRICK: Okay. You are not 9 offering CO-17, CO-20 and CO-21. 10 THE WITNESS: That's right. 11 A.L.J. KIRKPATRICK: Those correspond 12 with the Hearing Exhibit Nos. 19, 22, and 23. 13 MR. OPPEDAHL: Oh, yes, I see. Yes. 14 A.L.J. KIRKPATRICK: Okay. So, 15 therefore, you're offering Exhibits 1 through -- 16 Hearing Exhibit Nos. 1 through 24, except for 19, 22 17 and 23. 18 MR. OPPEDAHL: Yes, Your Honor. 19 A.L.J. KIRKPATRICK: Okay. Any objection 20 to any of those exhibits, Mr. Tymkovich? 21 MR. TYMKOVICH: Your Honor, I have no 22 objection, except for two items that are related. I 23 would object to Exhibit CO-22, which would be Hearing 24 Exhibit 24. And the basis for that is I would move to 25 strike that portion of Mr. Oppedahl's testimony that 37 1 refers to -- in the exhibit, that would be pages 26 2 through 33 to his January 24th of 2002 reply testimony. 3 And the basis for my motion for striking that 4 testimony, it has to do with the relevancy objection. 5 He introduces some testimony at the end of his reply 6 testimony regarding a subloop lease contract that is 7 not at issue in this arbitration. His petition for 8 arbitration raised two issues, two cost issues 9 involving the loop and quote preparation fees, and 10 insurance issues. The testimony on pages 26 through 33 11 seeks to expand the hearing beyond what the petition 12 and the court's earlier ruling was designed to address. 13 And so I think it would be irrelevant and 14 improper expansion of this docket beyond issues that 15 nobody has provided testimony on, whether it's direct 16 or rebuttal to date. So I would move to strike that, 17 those portions of the testimony, beginning at line 3 on 18 page 26 through the end of the testimony, and related 19 Exhibit CO-22, which is Hearing Exhibit 24, on the 20 grounds that it seeks to introduce a proposed 21 interconnection agreement that was not -- that is not 22 properly at issue in this docket. Thank you. 23 A.L.J. KIRKPATRICK: You said one thing 24 in there about -- you said court order. I think you 25 meant commission order limiting the proceeding is what 38 1 you were referring to. 2 MR. TYMKOVICH: I was referring to your 3 interim order that set forth the, I thought, issues and 4 the procedures for -- 5 A.L.J. KIRKPATRICK: Previous hearing 6 order. 7 MR. TYMKOVICH: Yes, sir. 8 A.L.J. KIRKPATRICK: Okay. Mr. Oppedahl. 9 MR. OPPEDAHL: I have moved over to here 10 in an effort to make sure that I keep track of the fact 11 that I am the advocate now speaking rather than a 12 witness. And I am here to address the objection to 13 those pages of the reply testimony of the Co-op's 14 witness. 15 That reply testimony is necessitated by 16 Mr. Easton's direct, in which Mr. Easton states that he 17 believes that the Co-op is in agreement with everything 18 in Qwest's most recent proposed contract, 101-page 19 contract. He states that he believes the Co-op is in 20 agreement with everything in the 101-page contract, 21 other than a very short list of items. When he said 22 that, he's purporting to know what the Co-op agrees to 23 and what the Co-op doesn't agree to, and there's no -- 24 I would suggest, testimony will make clear later 25 there's no -- that view on his part would be 39 1 unreasonable. 2 The Co-op is not comfortable with the 3 101-page contract. I don't believe the Co-op has ever 4 said, on record, it was comfortable with the 101-page 5 proposed contract. There were requests submitted from 6 Qwest directed to the Co-op that were intended to find 7 out whether the Co-op would admit that it had no 8 objection to the 101-page contract, and the Co-op 9 denied the requests to admit that were on that topic. 10 And, so, Qwest could not have claimed to be surprised 11 as soon as they got their responses to their request to 12 admit -- could not have claimed to be surprised that 13 the Co-op continued to be unhappy with the proposed 14 101-page contract. 15 The reply testimony which Mr. Tymkovich 16 has requested to have stricken from the record is reply 17 testimony that very directly pinpoints, one by one, 18 sections of the 101-page contract that the Co-op is 19 uncomfortable with. That's the relevance, Your Honor. 20 A.L.J. KIRKPATRICK: Okay. 21 MR. TYMKOVICH: Your Honor, if I may. 22 Mr. Oppedahl replies to -- 23 A.L.J. KIRKPATRICK: Briefly. 24 MR. TYMKOVICH: He has reply testimony at 25 pages 4 through 10 of his reply testimony that address 40 1 that issue. The issues that I have identified in my 2 motion to strike go beyond rebuttal to Mr. Easton, 3 because they supply a new proposed interconnection 4 agreement with many new issues into the docket. So, I 5 think he has replied, as he has represented earlier in 6 the testimony, but the part that I move to strike goes 7 well beyond that, as I have tried to indicate. 8 A.L.J. KIRKPATRICK: I don't think it's 9 objectionable, so I will deny the motion to strike both 10 the testimony and the exhibit. What was the other 11 exhibit you had an objection to, Mr. Tymkovich? 12 MR. TYMKOVICH: That was all, Your Honor. 13 You said two items. I guess it was -- the testimony 14 was the other item. Yes. 15 A.L.J. KIRKPATRICK: Okay. All right. 16 They are admitted then, and in their entirety. 17 A.L.J. KIRKPATRICK: Okay. Available for 18 cross examination, Mr. Oppedahl? 19 MR. OPPEDAHL: One more item of direct 20 and then we would yield the witness to Qwest. In 21 Mr. Hubbard's testimony, filed January 25th, 22 Mr. Hubbard states that the Co-op -- 23 MR. TYMKOVICH: Your Honor, if I might, 24 one other -- excuse me for interrupting. One other 25 procedural clarification. As I understand it, the 41 1 purpose or the point of the hearing we're in, it's 2 going to be for Mr. Oppedahl to offer up his direct and 3 reply testimony. I don't think this is the point in 4 the hearing when he can supply additional testimony or 5 reply to testimony that has not been offered or 6 accepted by the court. So, to the extent he is going 7 beyond either the direct or reply, I would object at 8 this time as premature. 9 MR. OPPEDAHL: My intention is to confine 10 myself at this moment to strictly reply to issues 11 raised by Mr. Hubbard in his testimony that was filed 12 January 24th. 13 A.L.J. KIRKPATRICK: Commission does 14 allow rebuttal and occasionally surrebuttal. And it 15 gets a little confusing how you name -- what you call 16 the testimony when parties are filing numerous rounds. 17 But I think Mr. Oppedahl is the party on behalf of Ruby 18 Ranch. Ruby Ranch bears the burden. Typically they 19 will have the chance to have the last say on matters, 20 and so I will allow him a chance to respond, or, if you 21 are concerned about the timing, we can hold off and 22 Mr. Oppedahl, since he is technically responding to 23 testimony which is not yet in the record, and we can 24 have him back for oral comment, there's something to be 25 said for that. Generally, as I say, the commission 42 1 likes to get people up and down one time, but it is a 2 little confusing wherein he is rebutting testimony that 3 technically isn't in the record. 4 MR. TYMKOVICH: Your Honor, I might add, 5 he will have an opportunity to cross examine 6 Mr. Hubbard. So, that may or may not reduce or 7 eliminate the need for surrebuttal. So, I don't want 8 him to be rebutting things that either are not in the 9 record, if they are not offered or are answered 10 adequately on cross, just from an efficiency 11 standpoint. 12 MR. OPPEDAHL: If I may, Your Honor. I 13 may have misunderstood the procedural posture of 14 Mr. Hubbard's testimony. I, from what I just heard, I 15 have the impression, perhaps, his testimony is not yet 16 officially in the record, and even though it was filed 17 last week. And if that's so, then what I am proposing 18 to do now is probably out of turn. 19 A.L.J. KIRKPATRICK: Well, it is, 20 logically, it's out of turn, but the commission is 21 sometimes illogical in its procedures. So, why don't 22 we wait. Hold off on your oral comments, call them 23 what you will, until later and let's confine it, right 24 now, to your direct testimony, exhibits, and get to the 25 cross examination of that. 43 1 MR. OPPEDAHL: That concludes my direct. 2 A.L.J. KIRKPATRICK: Okay. Let's -- why 3 don't we take a short, early break before we commence 4 with the cross examination of Mr. Oppedahl. We'll take 5 a 10-minute break and resume directly with the cross 6 examination. 7 MR. OPPEDAHL: Thank you. 8 (Whereupon Exhibit Nos. 2-12, 14-18, 20, 21 and 9 24 were marked for identification.) 10 (Recess.) 11 A.L.J. KIRKPATRICK: Okay. We're ready 12 to resume. 13 MR. TYMKOVICH: Your Honor, we will have 14 no cross examination of Mr. Oppedahl. 15 A.L.J. KIRKPATRICK: Okay. Mr. Oppedahl. 16 I guess that you don't need any redirect. 17 MR. OPPEDAHL: That's right. 18 A.L.J. KIRKPATRICK: There's no need for 19 redirect. 20 MR. OPPEDAHL: That's right. Your Honor, 21 my new understanding is that as of this moment the 22 prefiled testimony of Qwest's witnesses is not yet 23 formally in the record. I assume that means it would 24 be inappropriate for me to purport to cross them at 25 this time. 44 1 A.L.J. KIRKPATRICK: Well, they are going 2 to, if you are done with your case, that's the step 3 we're getting to now, is for them to call their 4 witnesses and then just do the same thing that you did. 5 So -- 6 MR. OPPEDAHL: We're trying to figure out 7 if we're going to rest. It may well be that we rest 8 now. I need to talk for a minute. 9 (Discussion off the record.) 10 MR. OPPEDAHL: With the understanding 11 that we will later file the requests for admission at 12 whatever procedure Your Honor directs, contingent on 13 that, we now rest. 14 A.L.J. KIRKPATRICK: Contingent on that, 15 and I missed what you said. 16 MR. OPPEDAHL: We rest. 17 A.L.J. KIRKPATRICK: Did you have an 18 opportunity to look at this, Mr. Tymkovich, by any 19 chance? I know it was a short break. 20 MR. TYMKOVICH: I did, Your Honor. I 21 will try to do the best I can. You want to go through 22 those now or do you want to reserve that until later? 23 A.L.J. KIRKPATRICK: I don't want to rush 24 you. If you want to take a little more time, I will 25 give you a little more time. 45 1 MR. TYMKOVICH: I will go through my 2 objections. I have not had the opportunity to 3 determine what, if any, of our admission discovery 4 requests I would want to put in to supplement. 5 A.L.J. KIRKPATRICK: You are prepared to 6 go through these? 7 MR. TYMKOVICH: Yeah. I believe so. 8 A.L.J. KIRKPATRICK: Why don't we go 9 through these now. 10 MR. OPPEDAHL: Sure. Then, let me 11 withdraw my resting, since, depending on the results of 12 these discussions, I suppose it might be necessary for 13 me to take the stand somehow to address something that 14 would come out of this. 15 A.L.J. KIRKPATRICK: Okay. Let's go 16 ahead then, Mr. Tymkovich. 17 MR. TYMKOVICH: Your Honor, we would not 18 admit to 7 and 8. We would admit -- we would object to 19 32 through 36 on relevancy grounds. These all purport 20 to involve billing inserts from Qwest on retail 21 services. They have nothing to do with wholesale 22 pricing or insurance, which is the issue in this 23 docket. So, I would object to 32 through 36 on those 24 grounds. 25 A.L.J. KIRKPATRICK: I am not following 46 1 you on the numbering system here. To be honest, I did 2 not look at these at the break, so I am not -- 3 MR. TYMKOVICH: If I may approach. 4 A.L.J. KIRKPATRICK: I am not seeing -- 5 MR. TYMKOVICH: So we're on the same 6 page, I am reading off of what Mr. Oppedahl handed to 7 us. And my -- 8 A.L.J. KIRKPATRICK: Start with 7. 9 MR. TYMKOVICH: And 8. 10 A.L.J. KIRKPATRICK: Okay. I guess -- 11 all right. So they are sequential. They are in 12 ascending order, but there's gaps in there. 13 MR. OPPEDAHL: Yes. 14 A.L.J. KIRKPATRICK: So 32 through 36 on 15 relevancy grounds in that they relate to billing 16 inserts and retail pricing, is that what you said? 17 MR. TYMKOVICH: That's correct. 18 A.L.J. KIRKPATRICK: Was that it, then? 19 MR. TYMKOVICH: I am sorry. Let me 20 continue, then. We would object to No. 46, again, on 21 relevancy grounds. It purports to be a request that 22 has to do with issues in the negotiation that are not 23 admissible in this proceeding, or are irrelevant to the 24 cost and insurance issues here. So, 46 on relevancy. 25 Forty-seven, on the same grounds, Your 47 1 Honor. And also on the grounds that the request is 2 misleading, because it fails to indicate that the Co-op 3 proposed six-page interconnection agreement included 4 several 100 pages of the SGAT, which was incorporated 5 by reference into Mr. Oppedahl's proposed 6 interconnection agreement. 7 We do not object to 62, 63, and 64, 70, 8 73, 74, 75, 78, 79, 80, and 83. 9 We object to Request No. 96 on relevancy 10 grounds, because it -- again it refers to Qwest's 11 retail DSL service, which is not in issue in this 12 interconnection arbitration. We do object to Nos. 104, 13 105, 106, and 107 on relevancy grounds, because they 14 address the provision of equipment and modem speeds 15 that are -- have nothing to do with the pricing issues 16 or the insurance issue in this proceeding. 17 We do not object to Interrogatory No. 18 19 -- I am sorry. We do not object to the next one in 19 the sequence, which is Admission No. 19, 20, or 21. We 20 do not object to Admissions 9, 11, 14, and 16. 21 A.L.J. KIRKPATRICK: Do not. 22 MR. TYMKOVICH: We do not. 23 A.L.J. KIRKPATRICK: Okay. What was your 24 objection to the very first two, 7 and 8? Was that the 25 same? 48 1 MR. TYMKOVICH: No objection to 7 and 8. 2 A.L.J. KIRKPATRICK: No objection to 7 3 and 8. I wrote that down wrong. 4 MR. TYMKOVICH: If you missed it in your 5 notes, I can go through it very quickly. 6 A.L.J. KIRKPATRICK: What I have is 32 to 7 36, relevancy grounds. Forty-six and 47, relevancy 8 grounds. Forty-six and 7, matters subject to 9 negotiation. And also 47 misleading because of 10 incorporated material for the SGAT. 96, relevancy 11 relating to retail services, and 104 to 107, relevancy 12 grounds addressing modems and matters not subject to 13 the arbitration. 14 MR. TYMKOVICH: And one amendment. I 15 included 32, 33, 34, 35, and 36 in that. 16 A.L.J. KIRKPATRICK: I am sorry. Did I 17 say just 32? I have it in my notes, 32 through 36. 18 MR. TYMKOVICH: Okay. That's correct. 19 A.L.J. KIRKPATRICK: Okay. Why don't we 20 go through -- at least give me just a minute to review 21 them a little. 22 Let's take 32 through 36 together, if we 23 can, as a group. 24 MR. OPPEDAHL: Yes, Your Honor. 25 A.L.J. KIRKPATRICK: Since I think they 49 1 were all grouped together. 2 MR. OPPEDAHL: Yes. They should stand 3 and fall together. 4 A.L.J. KIRKPATRICK: What about these, 5 Mr. Oppedahl? 6 MR. OPPEDAHL: In my prefiled direct, I 7 cover these same points; that Qwest has sent billing 8 inserts to our neighborhood offering DSL, and then, as 9 it turns out, won't take orders for DSL. I suggest 10 that relevance comes from at least two directions. 11 The first direction is there is a need in 12 our neighborhood, there's a need anywhere in the United 13 States, for high quality Internet access. Qwest is not 14 supplying it and doesn't offer it for any price. And I 15 would like the record to be clear not only that Qwest 16 doesn't provide it, but also these billing inserts get 17 sent out and I wonder who pays for them. I suspect we 18 pay for them all through our telephone bills. 19 I think it's important for the 20 decision-maker in this matter to be aware that our 21 Co-op is trying to provide a service that Qwest won't 22 provide. 23 A.L.J. KIRKPATRICK: Was that both 24 your -- you sort of rolled over. . . 25 MR. OPPEDAHL: I think I combined the two 50 1 points, Your Honor. 2 A.L.J. KIRKPATRICK: Okay. I don't think 3 they are relevant to this proceeding, so -- 4 MR. OPPEDAHL: Yes, Your Honor. 5 A.L.J. KIRKPATRICK: So, I will grant the 6 motion to, I should say, to strike them or not admit 7 them. 8 MR. OPPEDAHL: Also, just 46 and 47 could 9 be taken together as well. That is to say the next one 10 to talk about would be those two together. 11 A.L.J. KIRKPATRICK: Let me have a moment 12 to review them. Let's take these separately because I 13 think that there were a couple of different grounds -- 14 MR. OPPEDAHL: Yes. 15 A.L.J. KIRKPATRICK: -- raised by Qwest. 16 So let's talk about 46 first. 17 MR. OPPEDAHL: The point of 46 is to make 18 clear that the -- 19 MR. TYMKOVICH: Your Honor, I will 20 withdraw my objection on 46, if that helps us move it 21 along. 22 MR. OPPEDAHL: Forty-seven, by the way, I 23 think I was mistaken to include it here. I was under 24 the impression this one was an admission and I see that 25 it's a denial. It's pointless for me to try to 51 1 introduce a denial. 2 A.L.J. KIRKPATRICK: Okay. 3 MR. OPPEDAHL: Under the circumstances, 4 so 47 should just go out. 5 A.L.J. KIRKPATRICK: Forty-seven 6 withdrawn. 96. 7 MR. OPPEDAHL: The -- 8 A.L.J. KIRKPATRICK: Hold on just a 9 minute, Mr. Oppedahl. I am not there yet. Okay, 10 Mr. Oppedahl. 11 MR. OPPEDAHL: Pardon me. I just have to 12 ask a question. 13 (Discussion off the record.) 14 MR. OPPEDAHL: Federal law requires that 15 rates charged under the '96 act be reasonable, just and 16 nondiscriminatory. We, of course, have a burden of 17 proof to, I guess, either support or make attacks upon 18 the prices proposed by Qwest, or to support the prices 19 which we affirmatively suggest would be appropriate 20 under the '96 act for our rental of subloops. The 21 rental of subloops has a nonrecurring cost and 22 recurring cost. The nonrecurring cost which Qwest 23 originally proposed was $126, now $120 and change. I 24 apologize that I don't remember the number of pennies. 25 Our resources are limited and the 52 1 comparisons that we have drawn have typically been to 2 other activities which we believe would be somewhat 3 comparable in terms of the actual underlying costs 4 incurred by Qwest to do other things. Here, when Qwest 5 activates DSL, it often doesn't charge anything to the 6 customer for activating DSL, even though that 7 presumably involves not only the work that would be 8 involved in a subloop but work involved in the rest of 9 the loop, and all sorts of other work, including 10 Central Office work and various retail negotiations 11 with the new customer. 12 It is our suggestion that Qwest 13 apparently, finding it possible in running its business 14 to waive an activation fee, that ought to be of some 15 relevance rather than no relevance on the question of 16 what ought to be a fair price to charge for activating 17 a subloop, a nonrecurring cost for a subloop for the 18 Co-op under the '96 act. That is our -- why we feel 96 19 is relevant. 20 A.L.J. KIRKPATRICK: Okay. I'll give you 21 a brief chance, Mr. Tymkovich. 22 MR. TYMKOVICH: Your Honor, again, it has 23 to do with retail costs, which is the subject of a 24 different cost docket for retail or finished services. 25 It has nothing to do with wholesale services here. To 53 1 the extent he believes it's an issue, he hasn't 2 provided any witnesses that would determine whether 3 fees are included in the retail costs. There's been no 4 comparison at all of the retail versus the wholesale 5 elements. That's an apples/oranges comparison. It's 6 irrelevant, and doesn't show anything that would be 7 relevant to the wholesale pricing, which was the 8 subject of the cost docket in the 577T matter. 9 A.L.J. KIRKPATRICK: Well, retail and 10 wholesale pricing are certainly different. However, 11 Mr. Oppedahl, in his testimony, and which was not 12 objected to by Qwest, does attempt to draw some 13 analogies in his proposed pricing using retail pricing. 14 So, I am not prepared to strike it. I am not sure what 15 weight will be given to it by the commission, but I 16 think it's okay. Let's move on, then, to 104 through 17 107 and give me a minute to review them. 18 Let's take these separately. Why don't 19 we take 104 and 105 together. I think they group more 20 closely, and then 106 and 107. So -- 21 MR. OPPEDAHL: Yes. 22 A.L.J. KIRKPATRICK: 104 and 105 first, 23 Mr. Oppedahl. 24 MR. OPPEDAHL: Yes, Your Honor. 104 goes 25 to the fact that no one is offering DSL, no one offers 54 1 cable modem in our neighborhood. All that's left is to 2 dial up with a modem. 3 One of the first papers in this record -- 4 I forget if it was Your Honor or if it was Qwest -- 5 talked about present modem dial-up service enjoyed -- 6 "enjoyed" was the operative verb -- by residents of the 7 neighborhood. And "enjoyed" would be an overstatement. 8 It is impossible to get connections faster than about 9 26K in our neighborhood, because of the nature of the 10 POTS dial tones provided by Qwest, which go through 11 several analogues to digital conversions because our 12 neighborhood is served by remote terminal. Other 13 people who live elsewhere, who happen to have phone 14 lines that have a direct metallic connection all of the 15 way to the Central Office can often gets speeds of 49K 16 or 53K. 17 The sole way of connecting to the 18 Internet for most of the people in the neighborhood is 19 dial-up modems that are painfully slow, on average, 20 half of the speed of modem connects for people 21 elsewhere in Qwest's serving territory. It is my 22 suggestion that that's relevant in this proceeding. 23 Section 706 of the '96 act defines what the phrase, 24 "high-speed telecommunication services "-- "advanced 25 telecommunication services" is defined by the act. And 55 1 it's defined essentially as speeds 200K or faster. The 2 fact that we are not running at a fourth of that speed 3 but at an eighth of that speed is -- much less than a 4 fourth of that speed -- is, I suggest, relevant to this 5 whole inquiry. We're trying to provide DSL. Nobody 6 else will do it. So 104 is relevant because Qwest, 7 with credible candor, admits that you can't get a 8 decent modem connection in our neighborhood. I stated 9 it in my direct testimony, to which there was no 10 objection. And Qwest, to its credit, admits that we 11 can't get good modem connections in the neighborhood. 12 Those are my comments to 104. 13 As to 105, in fairness, it should 14 probably stand or fall with 32 through 36, which had to 15 do with whether Qwest was providing any of these 16 services, even modem service Qwest doesn't provide in 17 our neighborhood. But if Your Honor doesn't think 18 Qwest's not providing DSL was relevant, I certainly 19 would acknowledge that Your Honor would quite 20 reasonably reach the same conclusion about 105, but -- 21 that it's not relevant that Qwest doesn't provide 22 dial-up Internet conductivity in the neighborhood, 23 et cetera. 24 A.L.J. KIRKPATRICK: Well, I agree with 25 you on 105, Mr. Oppedahl. I am not going to admit it 56 1 for the same reasons I didn't admit 32 through 36. I 2 am not going to admit 104 either, for the same reasons. 3 I don't think you distinguish that, really, from the 4 same issues. Really, why you are here, the commission 5 really doesn't care, but you are here. You have got 6 the rights, under the act, and you are here exercising 7 them. That's really all that counts. 8 MR. OPPEDAHL: Want to proceed to 106 and 9 107? 10 MR. TYMKOVICH: Your Honor, I would 11 withdraw my objection to 106 and 107. 12 A.L.J. KIRKPATRICK: Okay. 13 MR. OPPEDAHL: By my notes, we're done 14 with that, Your Honor. 15 A.L.J. KIRKPATRICK: Let me just see if I 16 can make a quick summary here to make sure that we're 17 consistent. Okay. According to my notes, the only 18 ones that are not part of the package, that we are not 19 admitting, are 32 through 36 and 104 through 105; is 20 that correct? 21 MR. TYMKOVICH: That's what my notes 22 reflect, Your Honor. 23 MR. OPPEDAHL: Yes, Your Honor. 24 A.L.J. KIRKPATRICK: And, again, rather 25 than go through and recite what is in the package, I 57 1 would just let the package stand for itself. But I am 2 thinking if I should actually, physically remove -- no, 3 I shouldn't do that. I should leave them in. 4 MR. OPPEDAHL: Maybe -- 5 A.L.J. KIRKPATRICK: But I may make a 6 physical notation on the physical copy, just so the 7 reader is clear, without reference to the transcript, 8 that it was not admitted. 9 MR. OPPEDAHL: Maybe just drawing a line 10 through the ones that were not admitted, something like 11 that. 12 A.L.J. KIRKPATRICK: I will take -- I 13 will make a notation, rather than cross through -- or 14 just a notation at the top. 15 MR. TYMKOVICH: Thank you, Your Honor. 16 We'll try to have our, I guess, our rebuttal discovery 17 as soon as we can before we close our case. 18 A.L.J. KIRKPATRICK: By that you mean the 19 requests for admission that you have served on Ruby 20 Ranch which you wanted to review? 21 MR. TYMKOVICH: Yes, sir. 22 A.L.J. KIRKPATRICK: Okay. All right. 23 Are we ready to proceed, then, to witnesses from Qwest? 24 MR. TYMKOVICH: Has Ruby Ranch rested? 25 MR. OPPEDAHL: Yes, we rest. 58 1 MR. TYMKOVICH: Your Honor, Qwest would 2 call William Easton, please. 3 A.L.J. KIRKPATRICK: Go ahead and have a 4 seat if you would, please. 5 (Whereupon William Easton was sworn.) 6 A.L.J. KIRKPATRICK: Could you state your 7 full name, and would you spell your name for the 8 record, please. 9 THE WITNESS: My name is William Easton, 10 E-a-s-t-o-n. 11 MR. TYMKOVICH: May I approach, Your 12 Honor? 13 A.L.J. KIRKPATRICK: Yes. 14 DIRECT EXAMINATION 15 BY MR. TYMKOVICH: 16 Q Good morning, Mr. Easton. Could you 17 identify what's been tendered to you? 18 A I've got in front of me my direct 19 testimony that was filed on January 17th of this year. 20 I have got my Exhibit WRE-1, which was filed with that 21 direct testimony. Do you want a description of what 22 that is? 23 Q Yes sir. 24 A That's a copy of Qwest's proposed 25 interconnection agreement with Ruby Ranch. I have got 59 1 Exhibit WRE-2, which was filed along with my direct 2 testimony, and that's a copy of Decision No. CO1-1302, 3 issued by the Colorado Utilities Commission on December 4 21st, 2001. I have also got a copy of my rebuttal 5 testimony filed in this docket on January 24th of this 6 year. 7 A.L.J. KIRKPATRICK: Okay. Let's get 8 those stamped and identified with the numbers according 9 to the scheme that I assigned them. So, if the 10 reporter would please stamp them. 11 (Whereupon Exhibit Nos. 25 - 28 were marked 12 for identification.) 13 A.L.J. KIRKPATRICK: Okay. Let's resume 14 then, Mr. Tymkovich. 15 BY MR. TYMKOVICH: 16 Q Mr. Easton, do you have any modifications 17 or changes to make to the testimony that you've 18 identified? 19 A Yes. I would like to make modification 20 to my rebuttal testimony on page 2, line 10 and line 21 11. I would like to strike the words "or 22 telecommunications carrier." And on line 19, I would 23 like to have -- of that same page -- would like to 24 change the words, "telecommunications provider," to 25 "CLEC," capital C, capital L, capital E, capital C. 60 1 A.L.J. KIRKPATRICK: Why don't you 2 physically make those changes and initial them. 3 THE WITNESS: Okay. In addition, I would 4 like to add to my Exhibit WRE-2, would like to add the 5 errata notice that was issued by the commission -- 6 mailed out on January 16th, 2002. This is the errata 7 to their December 21st order. 8 MR. TYMKOVICH: Your Honor, if I could 9 just represent, we already included that as the -- as a 10 part of the 577T order that was supplied earlier. Just 11 appended that to the end of that exhibit. 12 A.L.J. KIRKPATRICK: All right. Let me 13 just look for a moment. How many pages is it? 14 MR. TYMKOVICH: It's three pages at the 15 very end of the exhibit. I think you actually had it. 16 A.L.J. KIRKPATRICK: Why don't you show 17 me, Mr. Tymkovich. I looked twice and I can't find it. 18 (Discussion off the record.) 19 A.L.J. KIRKPATRICK: Okay. On the 20 record, Mr. Tymkovich, it wasn't in the package he 21 handed me. Is it in the package that the witness has? 22 Mr. Oppedahl, is it in your package? 23 MR. OPPEDAHL: We received it by fax 24 yesterday, Your Honor, from Qwest. 25 THE WITNESS: Yes, it is in the copy that 61 1 I have. 2 A.L.J. KIRKPATRICK: All right. 3 BY MR. TYMKOVICH: 4 Q Mr. Easton, with those additions and 5 modifications, do your exhibits accurately reflect your 6 testimony in this matter? 7 A Yes, they do. 8 MR. TYMKOVICH: Your Honor, I would move 9 to admit the exhibits. 10 A.L.J. KIRKPATRICK: Twenty-five through 11 28 in my numbering system. Any objection? 12 MR. OPPEDAHL: Exhibit 27 is, as I 13 understand it, is WRE-2. And that, as I understand it, 14 is the exhibit that we just received, the errata 15 notice, as something -- and if I can inquire through 16 Your Honor if that's correct. That is the exhibit that 17 changed? 18 A.L.J. KIRKPATRICK: That's my 19 understanding, yes, just the decision in the 577T 20 docket, and the addition was the errata that was 21 issued. 22 MR. OPPEDAHL: I would like to ask that 23 receiving 27 into the record with those extra pages be 24 held off until I have an opportunity to ask the witness 25 what significance he attaches to it. I am enable to 62 1 gauge the relevance of these four or five pages at this 2 time. 3 A.L.J. KIRKPATRICK: Are you talking 4 solely about the errata? 5 MR. OPPEDAHL: Yes. Only the errata. 6 A.L.J. KIRKPATRICK: Are you talking 7 about the entire exhibit? 8 MR. OPPEDAHL: Only the errata. 9 A.L.J. KIRKPATRICK: Hold off on that. I 10 would allow you some examination or voir dire, whatever 11 you want to call it, if you want to do it now or you 12 want to do it with your cross examination. 13 MR. OPPEDAHL: Then it's a matter of 14 paperwork. If giving it a different exhibit number 15 would make it easier to handle, I would certainly 16 be amenable to giving the four-page errata an exhibit 17 number. 18 MR. TYMKOVICH: Your Honor, it's a part 19 of the order that was proffered as an exhibit. It 20 would also be admissible under -- I think the 21 commission could take administrative notice of its own 22 order. I am not sure there's any controversy about it, 23 and Mr. Oppedahl can comment on it and the commission 24 can give whatever weight it wishes. 25 A.L.J. KIRKPATRICK: Well, I think 63 1 we'll -- there's two issues here. Let's just give it 2 one exhibit number, Mr. Oppedahl. 3 MR. OPPEDAHL: Yes, Your Honor. 4 A.L.J. KIRKPATRICK: You can just refer 5 to the errata. And, certainly, the commission takes 6 administrative notice of relevant decisions. So, is it 7 relevancy that you do have the objection to? 8 MR. OPPEDAHL: Well, I do not know 9 whether I have an objection, but I would respectfully 10 request the opportunity to speak with the witness to 11 learn what relevancy is suggested. 12 A.L.J. KIRKPATRICK: Okay. With that 13 exception, do you have any other objections? 14 MR. OPPEDAHL: No, Your Honor. 15 A.L.J. KIRKPATRICK: Okay. Then 25, 26, 16 and 28 are admitted. We'll hold off on 27 until you 17 have had a chance to talk with the witness. 18 MR. TYMKOVICH: Thank you. 19 A.L.J. KIRKPATRICK: Witness available 20 for cross? 21 MR. TYMKOVICH: Yes, sir. 22 A.L.J. KIRKPATRICK: Okay. Mr. Oppedahl. 23 MR. OPPEDAHL: Yes, sir, Your Honor. 24 CROSS EXAMINATION 25 BY MR. OPPEDAHL: 64 1 Q Mr. Easton, my name is Carl Oppedahl. I 2 am here representing the Ruby Ranch Internet 3 Cooperative Association, which we refer to as the 4 Co-op. We say the "Co-op" so that we can distinguish 5 from the neighborhood called the "Ruby Ranch 6 neighborhood," which is 40 homes, many of whom may 7 never have anything to do with our proposed DSL 8 service. You will hear me referring to the Co-op, and 9 I am saying that to make clear what I mean when I say 10 the "Co-op." There are a number of papers in this case 11 where people say "Ruby Ranch," and I think, in almost 12 every case, they are referring to what I would call the 13 Co-op. 14 If any of my questions are unclear today, 15 I hope you won't be bashful about speaking up and 16 asking me to clarify. I am often very exuberant, and I 17 will state a question too quickly. I will invite you 18 to ask me to slow down. It's your right, as witness, I 19 suggest. 20 I also meant to mention earlier, and 21 forgot, I am just hopefully getting done with a fever 22 and sore throat. I have to apologize to everyone if I 23 have to stop and get a glass of water now and again. 24 If you find you need a glass of water, please don't 25 hesitate to interrupt me. 65 1 Mr. Easton, your testimony contains a lot 2 of statements about what Qwest is obligated to do under 3 the '96 act, or what the Co-op must do if it asks for 4 arbitration under the '96 act. You have said quite a 5 few things about federal law in the 1996 act, have you 6 not? 7 A I have, yes. 8 Q Are you a lawyer? 9 A No, I am not. 10 Q But you feel comfortable giving the 11 testimony that you have given on those points relating 12 to the '96 act? 13 A I do. 14 Q And you won't object if I ask more 15 questions to try to clarify what you have to say about 16 the people's rights and responsibilities under the act? 17 A All right. 18 A.L.J. KIRKPATRICK: What was the answer? 19 THE WITNESS: Excuse me. I will not 20 object. 21 BY MR. OPPEDAHL: 22 Q Thank you. Prior to today, have you ever 23 spoken in person or by telephone with anyone in the 24 Co-op? 25 A No, I have not. 66 1 Q Prior to today, have you ever sent or 2 received an E-mail to or from anyone in the Co-op? 3 A No, I have not. 4 Q Were you present during any of the 5 negotiation sessions between Qwest and the Co-op? 6 A No, I was not. 7 A.L.J. KIRKPATRICK: What do you mean, 8 "present"? Those were conducted telephonically, as I 9 understand it. So, what does the question mean? Was 10 he sitting in the room where someone else was on the 11 telephone to you at any time? 12 MR. OPPEDAHL: Are the -- let me try to 13 make the question more clear, Your Honor. 14 BY MR. OPPEDAHL: 15 Q Did you participate, speaking or 16 listening, in any of the negotiation sessions between 17 Qwest and the Co-op? 18 A No, I did not. 19 Q Were you present, a silent listener to 20 any of those meetings? 21 A No, I was not. 22 Q Were they tape-recorded? 23 A I don't know the answer to that. I don't 24 believe so. 25 Q Did Qwest ever tape-record interconnect 67 1 negotiation conferences? 2 MR. TYMKOVICH: Your Honor, I object. 3 A.L.J. KIRKPATRICK: We're drifting, Mr. 4 Oppedahl. 5 MR. OPPEDAHL: I noticed hesitation and 6 it may seem we're drifting. In a question or two, I 7 will make it clear. 8 A.L.J. KIRKPATRICK: You need to get back 9 on track. 10 BY MR. OPPEDAHL: 11 Q Have you -- in your testimony you say a 12 lot about what happened during the negotiation 13 sessions, right? 14 A This happens to be a case in arbitration 15 of issues arising from those negotiations. 16 Q Well, but you talk about how certain 17 things happened or didn't happen during the negotiation 18 sessions, right? 19 A I think it's important to provide the 20 context for the issues we're arbitrating here. 21 A.L.J. KIRKPATRICK: Answer the question 22 directly if you would. 23 THE WITNESS: Yes. 24 A.L.J. KIRKPATRICK: Thank you. That was 25 a "yes" answer to his -- 68 1 THE WITNESS: Answer to him. 2 BY MR. OPPEDAHL: 3 Q If you weren't there, how do you know 4 what happened? 5 A I spoke with individuals who did 6 participate in those negotiations. 7 Q But you didn't listen to, say, audio 8 tapes of the sessions? 9 A No, I did not. 10 Q And, again, just to clarify, you know 11 they weren't taped or you don't know or what? 12 A I do not know. 13 Q And, again, I apologize if I am 14 repeating. Your job title -- you took on a new job 15 title in November of 2001; is that right? 16 A That's correct. 17 Q And then, for the first time, you had 18 responsibility for interconnect matters. Before that, 19 you had some other responsibility that did not have to 20 do with interconnect. 21 A That is correct. 22 Q So, indeed, you didn't even have 23 responsibility for interconnect matters during the time 24 that the negotiation sessions that you talk about 25 happened? 69 1 A Well, I was a director of the wholesale 2 financial. In that sense I was involved in 3 interconnection matters, but had nothing to do with 4 arbitrations or any regulatory proceedings around 5 interconnection, that's correct. 6 Q I am sorry. And you had nothing to do 7 with interconnection negotiations between potential 8 interconnectors and Qwest? 9 A That's correct. 10 Q Prior to November of 2001? 11 A That's correct. 12 Q Was it your decision to have you testify 13 here today about those interconnection sessions rather 14 than have having a Qwest employee who was actually in 15 those discussions? 16 A That is part of my job, to participate in 17 the regulatory proceedings. Typically we do not have 18 the negotiators participate in regulatory proceedings. 19 Q Why is that? 20 A They specialize in negotiating. I 21 specialize in being a witness in regulatory 22 proceedings. 23 Q And you wouldn't want Nancy Donahue to be 24 cross-examined; is that right? 25 A I can't -- 70 1 MR. TYMKOVICH: I believe it's 2 argumentative. 3 A.L.J. KIRKPATRICK: We're drifting, 4 Mr. Oppedahl. 5 MR. OPPEDAHL: I would withdraw. 6 A.L.J. KIRKPATRICK: I want you to focus 7 on his testimony. 8 MR. OPPEDAHL: Yes, sir, Your Honor. 9 BY MR. OPPEDAHL: 10 Q Have you ever been to the Ruby Ranch 11 neighborhood? 12 A No, I have not. 13 Q Did the Co-op ever invite Qwest people to 14 visit the neighborhood? 15 A I believe I saw on your Website that they 16 had extended that invitation. 17 Q So you have visited the Website of the 18 Co-op? 19 A I have, yes. 20 MR. OPPEDAHL: I need Exhibit L. 21 BY MR. OPPEDAHL: 22 Q In preparing for your testimony today, 23 did you review the ANSI standard that has been cited by 24 Qwest in these proceedings? 25 A No, I did not. 71 1 Q Did you review a Qwest publication about 2 grounding that Qwest has cited in these proceedings? 3 A No, I did not. 4 Q Did you review the Complaint in this 5 case? 6 A Yes, I did. 7 Q Did you review Qwest's -- 8 A.L.J. KIRKPATRICK: The Complaint? You 9 mean the petition for arbitration? 10 MR. OPPEDAHL: The petition for 11 arbitration. 12 THE WITNESS: I didn't review that 13 petition. 14 BY MR. OPPEDAHL: 15 Q Did you review Qwest's answer to that 16 petition? 17 A Yes, I did. 18 Q What testimony, if any, of people in this 19 case have you reviewed? 20 A I have reviewed all of the testimony in 21 this docket. 22 Q And have you reviewed any exhibits to 23 testimony in this case? 24 A Yes, I have. 25 Q Mr. Easton, is there any way that the 72 1 Co-op can provide the DSL services in the neighborhood, 2 other than using Qwest's subloops? 3 A Not specifically for providing DSL 4 services. 5 Q Well, are you suggesting there's some 6 other way that the Co-op can provide advanced 7 telecommunications services to people in the 8 neighborhood other than using Qwest subloops? 9 A Out on the Ruby Ranch Website, there are 10 other alternatives mentioned, such as frame relay, ISDN 11 services. A company called Tara Beam apparently offers 12 service in the Ruby Ranch area. 13 Q You are aware -- you mean Net Beam, 14 right? 15 A I believe there was a Tara Beam as well, 16 but -- 17 Q A microwave service; is that right? 18 A That's correct. 19 Q Are you aware that microwave service 20 filed bankruptcy? 21 A No, I am not. 22 Q Would that change your answer to the 23 availability of microwave service? 24 MR. TYMKOVICH: Your Honor, I would 25 object. It assumes a fact not in evidence. 73 1 A.L.J. KIRKPATRICK: We haven't had any 2 testimony about their bankruptcy. 3 MR. OPPEDAHL: Yes. In my direct there 4 is. 5 A.L.J. KIRKPATRICK: You are right. I do 6 recall that. Yeah. 7 BY MR. OPPEDAHL: 8 Q Would that change your answer? 9 A Yes. 10 Q And, I am sorry. The other options, 11 no -- oh, yes. You mentioned ISDN would provide a 12 maximum of what feed? 128K? 13 A 128, yes. 14 Q Do you know how much that costs per month 15 in Summit County? 16 A I would guess it probably exceeds $100 a 17 month. 18 Q Yeah. Because it has mileage charges 19 back down to Denver, right, or for Vail? 20 A.L.J. KIRKPATRICK: Sounds like you are 21 testifying instead of asking a question. 22 MR. OPPEDAHL: I am just asking a 23 question. 24 BY MR. OPPEDAHL: 25 Q It's too expensive because there are 74 1 mileage charges to far-away places; is that right? 2 MR. TYMKOVICH: Your Honor, I would 3 object. There's no evidence regarding the price of 4 other services in the -- 5 MR. OPPEDAHL: There is evidence. He 6 just gave a price. He said over $100, Your Honor. 7 A.L.J. KIRKPATRICK: Yeah, but you are 8 telling him what the components of it is. I don't want 9 you to tell him the answer. I want you to ask him the 10 question. If he doesn't get this, you will have to 11 just take the answer. 12 MR. OPPEDAHL: Withdrawn. 13 BY MR. OPPEDAHL: 14 Q You mentioned frame relay. Do you 15 believe that Qwest can offer frame relay in excess of 16 64K in the Ruby Ranch neighborhood? 17 A That I do not know. I am relying upon 18 what was on the Website, where you indicated, in fact, 19 you had relay to your offices. 20 A.L.J. KIRKPATRICK: Where is this 21 testimony? The direct testimony you are addressing 22 now, Mr. Oppedahl? 23 MR. OPPEDAHL: I believe I may have 24 strayed beyond direct. I propose to discontinue. 25 A.L.J. KIRKPATRICK: Okay. Let's move 75 1 on, and I want you to address his testimony, not try 2 and make points on other matters. 3 MR. OPPEDAHL: I will move on to the next 4 question. 5 A.L.J. KIRKPATRICK: I have already said 6 that existence of other services really is irrelevant 7 to the proceeding. 8 MR. OPPEDAHL: Yes, Your Honor. 9 A.L.J. KIRKPATRICK: Okay. Let's move 10 on. Let's get focussed. 11 BY MR. OPPEDAHL: 12 Q If you could turn to page 3 of your 13 direct, please. That's Exhibit 25, by the way. 14 A I have it. 15 Q Page 3, starting at about line 5, you 16 state that Qwest provided the Co-op with a proposed 17 interconnect agreement to begin the negotiation process 18 as it does with all CLECs. Do you see that? 19 A I do. 20 Q That proposed interconnect agreement was 21 over 250 pages in length; is that right? 22 A That's correct. 23 Q What the Co-op sent back to Qwest was a 24 document of less than six pages, right? 25 A I believe that's correct. 76 1 Q During the first two negotiation 2 meetings, isn't it true that the Co-op said that they 3 were staffed with volunteers and could not take the 4 time to study a 250-page, single-spaced document? 5 A I believe that's correct. 6 Q Let's turn to page 5, please. Down 7 towards the bottom of the page, approximately line 20, 8 did you say this: "With the exception of the two price 9 issues and new insurance language mentioned above, 10 however, Qwest believes that Ruby Ranch is in agreement 11 with the contract language." That was a reference to a 12 Qwest proposed contract of approximately 100 13 single-spaced pages; is that right? 14 A That is what my testimony is referring to 15 there, yes. 16 Q What is the basis for Qwest's belief that 17 the Co-op was in agreement with the contract language, 18 other than the two price issues and the new insurance 19 language? 20 A That was based on my reading of the 21 petition in this case where three issues were laid out 22 as being issues in this arbitration. And those were 23 the insurance issues and price -- two price issues. 24 Q So you're -- withdrawn. I will ask you 25 to turn to Exhibit 28, which is your rebuttal 77 1 testimony. If you could turn, please, to page 9. 2 A I have it. 3 Q At approximately line 14 is the sentence 4 that begins, "The Qwest cost studies were developed in 5 compliance with FCC requirements that prices be based 6 on Total Element Long Run Incremental Cost, 7 (TELRIC)" -- that's T-E-L-R-I-C -- "methodology plus a 8 reasonable allocation of joint and common costs." Do 9 you see that sentence? 10 A Yes, I do. 11 Q And the cost studies to which you refer 12 were cost studies relating to the quote preparation fee 13 and the nonrecurring cost for activating a subloop; is 14 that right? 15 A That's correct. 16 Q The Qwest cost studies with respect to 17 the quote preparation fee arrived at a figure of $1707, 18 ignoring the pennies, right? 19 A That's correct. 20 Q That price was never approved by the PUC, 21 was it? 22 A The PUC, in their order issued December 23 21st, approved the $1107 price. 24 Q Precisely $600 less? 25 A That's correct. 78 1 Q Down to the penny, $600 less? 2 A That's correct. 3 Q So the 1707 fee was never approved by the 4 PUC; is that right? 5 A No, but that was what was determined by 6 the price studies that Qwest submitted in that docket. 7 Q Does that mean the PUC did not accept the 8 cost studies? 9 A Not in its entirety, no. 10 Q The Qwest cost study on the topic of the 11 nonrecurring price for activating a subloop, the price 12 was $126 and change, right? 13 A That's correct. 14 Q That price was also not approved by the 15 PUC, right? 16 A That is correct. 17 Q Suppose that the 577T order had not been 18 entered even now -- I realize that it was entered last 19 December 21st, according to Qwest's papers, but suppose 20 it had not been entered even now, is it Qwest's 21 position that Qwest would still be entitled to demand 22 that the Co-op pay the 1707 and $126 fees? 23 A Yes. 24 MR. TYMKOVICH: Your Honor, I would 25 object. It calls for speculation, and the order in 79 1 577T is an issued decision of the commission. 2 A.L.J. KIRKPATRICK: Aren't we getting 3 into the realm of the never-never world, Mr. Oppedahl? 4 If's and but's and scenarios that don't exist. What's 5 the answer going to tell me, or tell the commission. 6 MR. OPPEDAHL: I think the answer would 7 tell -- I think the answer would tell the commission 8 that hard and fast nonnegotiable positions taken by 9 Qwest are apparently not so nonnegotiable, simply 10 because an order gets issued by the commission and -- 11 A.L.J. KIRKPATRICK: Are not so 12 nonnegotiable? 13 MR. OPPEDAHL: Yeah. Suddenly 1707, 14 which was nonnegotiable in the relationship between 15 Qwest and the Co-op until December 21, suddenly 1707 is 16 no longer Qwest's demand. And yet under the 1996 act, 17 an Incumbent Local Exchange Carrier is obligated to 18 charge just, reasonable, nondiscriminatory prices, and 19 they have to be based on actual costs. The actual cost 20 presumably did not change before and after December 21, 21 2001, yet somehow the price that Qwest refused to 22 deviate from did change. And it's puzzling to know how 23 the price Qwest would demand would change, Your Honor, 24 when the cost presumably didn't change drastically on 25 December 21st. That would be my suggestion -- my 80 1 question. 2 A.L.J. KIRKPATRICK: I would allow it, 3 and the answer was "yes." I don't want to get too far 4 into -- I mean -- the 577T order is quite complicated, 5 and I have read it. And, you know, the reason that the 6 commission came up with the numbers it does, because it 7 changed the inputs and some of the assumptions of the 8 cost studies that parties suggested. 9 So, I don't want to mix apples and 10 oranges about what's nonnegotiable versus what's a good 11 cost study and what's not a good cost study. I think 12 the commission order is an effort to set a price based 13 upon the best possible modeling and input data 14 available, given the constraint of TELRIC pricing. 15 So, I guess, with that sort of footnote, 16 I would allow -- I have allowed the question and the 17 response. So, let's have a new question. 18 MR. OPPEDAHL: It's -- well, I will 19 proceed to my next point. 20 BY MR. OPPEDAHL: 21 Q SGATs are optional. Telephone companies 22 are not required to file them, right? 23 A That's right. 24 Q If there had been no SGAT in this case, 25 would it be Qwest's position that the prices that the 81 1 Co-op would have to pay would be the 1707 and 126? 2 MR. TYMKOVICH: Your Honor, I would 3 object on the same grounds. 4 MR. OPPEDAHL: The '96 act does not say 5 that an SGAT relieves the phone company of its 6 obligation to conduct interconnect negotiations and to 7 come up with just and reasonable prices, based upon 8 actual costs. And had there not been an SGAT, I 9 suppose all we would be doing is hearing Qwest state 10 that these numbers are nonnegotiable. I was hoping to 11 probe the witness on this point. 12 A.L.J. KIRKPATRICK: I will allow it. 13 BY MR. OPPEDAHL: 14 Q Suppose Qwest had never filed an SGAT, 15 would you agree, under such circumstances, Qwest would 16 be entitled to require -- I am sorry. Let me back up. 17 Would you agree that if there were no SGAT filed, Qwest 18 would be required to charge prices based upon the 19 actual cost of provisioning subloops? 20 A Let me first clarify. It's not actual 21 costs. That's not what's required under the 22 telecommunications act. But let me answer this way: 23 If there were no SGAT, the price that would have been 24 offered for the quote preparation fee would be 25 $1707.09, and the nonrecurring fee would be $126.49. 82 1 The reason it would be that is that Qwest has an 2 obligation, under the act, to base its prices on 3 TELRIC. Our TELRIC studies arrived at those figures. 4 Q I will ask you to turn, please, to your 5 Exhibit WRE-1, which has been given a number of 26. Do 6 you have that exhibit? 7 A I have got it. 8 Q Is there a place in this agreement 9 where -- sorry. Is there a place in this SGAT where it 10 is stated that it is an alternative to negotiation? 11 A I can't answer that question for you. 12 Sorry. 13 Q I will come back to that question in a 14 moment. How is a Total Element Long-Run Incremental 15 Cost calculated for a nonrecurring cost? How can 16 something that's a one-time cost have anything long run 17 about it? I apologize. That's compound. How can a 18 long-run incremental cost be calculated for a 19 nonrecurring cost? 20 A Well, we're required, under the 21 Telecommunications Act in 1996, to determine both 22 recurring and nonrecurring prices under a TELRIC 23 methodology. Ruby Ranch has been provided copies of 24 those cost studies. They provide the backup detail, 25 how those costs were developed. 83 1 MR. OPPEDAHL: If I could take 60 2 seconds, Your Honor? 3 A.L.J. KIRKPATRICK: Okay. 4 MR. OPPEDAHL: At this point, Your Honor, 5 I would ask that we go into a brief confidential 6 period. It should be only five or ten minutes' worth. 7 Then I will say when we're done with that and we can go 8 for a nonconfidential period. 9 A.L.J. KIRKPATRICK: Okay. Anyone in the 10 hearing room that hasn't signed the nondisclosure 11 agreement? Who is this individual? You have not 12 identified him, Mr. Oppedahl. 13 MR. BORK: My name is Jeff Bork, B-o-r-k. 14 I am a board member of the Co-op. 15 MR. OPPEDAHL: His agreement was filed 16 with the Co-op on Monday, three days ago. 17 A.L.J. KIRKPATRICK: The Co-op? 18 MR. OPPEDAHL: Was filed with the 19 commission on Monday. 20 A.L.J. KIRKPATRICK: What's your 21 position, Mr. Bork? 22 MR. BORK: I am a member of the board of 23 directors of the Internet -- Ruby Ranch Internet 24 Cooperative. 25 A.L.J. KIRKPATRICK: Okay. That alone 84 1 doesn't necessarily entitle you to review confidential 2 material. Commission rules allow the attorney of 3 record to -- of course this is complicated because, 4 Mr. Oppedahl, you haven't entered your appearance -- 5 but the attorney and persons designated by the attorney 6 as experts or advisors. And there needs to be some 7 basis for that designation. In other words, you can't 8 just give it to anyone you want to. 9 Let's assume, for purposes of argument, 10 that you are, de facto, the attorney for the Co-op. 11 For purposes of the confidentiality rule, is it your 12 desire to designate Mr. Bork as an expert or advisor in 13 this proceeding? 14 MR. OPPEDAHL: To save time devoted to 15 that question, I would suggest that I could ask 16 Mr. Bork to step out for these questions. 17 A.L.J. KIRKPATRICK: Well, if it's 18 essential. I mean, as you see, there are a lot of 19 people from Qwest. 20 MR. OPPEDAHL: I don't mean to suggest 21 it's essential, and Mr. Bork can step out. That will 22 save that issue. 23 A.L.J. KIRKPATRICK: Okay. Mr. Bork, if 24 you would then. 25 MR. OPPEDAHL: I will come get you when 85 1 we're done. 2 MS. QUINTANA: Your Honor, as you know, I 3 am a member of the advisory staff filling in for 4 another advisor today. I have not signed a 5 nondisclosure agreement yet, but I can certainly step 6 out, if it's your pleasure. 7 MR. OPPEDAHL: I have no objection to -- 8 A.L.J. KIRKPATRICK: You can sign one 9 later. 10 MR. TYMKOVICH: No objection from Qwest. 11 A.L.J. KIRKPATRICK: Okay. This portion 12 of the transcript is confidential then, and inform me 13 when we're done. 14 Go ahead, Mr. Oppedahl. 15 (Whereupon the following proceedings 16 were excerpted and are under separate cover in 17 the File Room of the Commission.) 18 19 20 21 22 23 24 25 [confidential portion of four pages] 90 1 MR. OPPEDAHL: Okay. We're back on the 2 record and this is nonconfidential. 3 BY MR. OPPEDAHL: 4 Q Mr. Easton, could you please turn to your 5 Exhibit WRE-1, which is the Hearing Exhibit 26. Do you 6 have that? 7 A I have got it. 8 Q At the bottom of the first page is a 9 date, 1/11/2002. Do you see that? 10 A Yes, I do. Excuse me. I do not. Yes, 11 on the first page. 12 Q If you turn to the second page, it's 13 11/02/2001. Do you see that? 14 A I do. 15 Q Why are there two different dates? 16 A That I can't tell you. 17 Q Is this document mixed up? Are there two 18 things that accidentally got mixed together when they 19 were being photocopied or stapled or something? 20 A I was not involved in the actual 21 preparation of the document, so I cannot explain why 22 there's the difference in dates. 23 Q Does this put into question your 24 testimony about this exhibit? 25 A No, it does not. 91 1 Q Leaves all of your statements and 2 conclusions unchanged? 3 A Yes, it does. 4 Q Is the difference in dates somehow 5 attributable to the date of the commission's order in 6 577T? 7 A I don't believe so, no. Appears to me as 8 if they just got the different date on the front cover. 9 All of the other pages appear to have that date. The 10 version and numbers appear to be the same. 11 Q Version and numbers? 12 A.L.J. KIRKPATRICK: Okay. Let's move 13 along. 14 MR. OPPEDAHL: Yes. 15 BY MR. OPPEDAHL: 16 Q Could you turn to your direct testimony, 17 page 8, please. 18 A I have it. 19 Q Looking at line 3, do you see a sentence 20 that reads, "To depart from these operations for a 21 particular customer such as Ruby Ranch would not only 22 violate the commission decision but would also violate 23 the antidiscriminatory requirements of the act." Do 24 you see that sentence? 25 A That's correct. 92 1 Q That sentence is in your testimony, 2 right? 3 A Yes, it is. 4 Q Now, in fairness to your expressing a 5 legal opinion there, right -- withdrawn. What is your 6 basis for saying what you say in that sentence? 7 A Qwest has an obligation to follow the 8 rules and regulations of this commission. The 9 commission just came out, December 21st, setting the 10 prices for wholesale Unbundled Network Elements. I 11 don't feel it would be appropriate for Qwest to depart 12 from those prices. 13 In addition, Qwest has an obligation, 14 under the act, to charge reasonable, nondiscriminatory 15 rates. This commission concluded, on December 21st, 16 that the rates they were ordering are reasonable and 17 nondiscriminatory. It makes it very awkward for Qwest 18 to depart from that. 19 Q You asked to correct your prefiled 20 testimony deleting the things that you said about 21 whether the Co-op was or was not a telecommunications 22 carrier, right? 23 A That's correct. 24 Q Why did you make that change? 25 A In reviewing the testimony this weekend,I 93 1 discovered that, in fact, the Co-op testimony was not 2 that they were not a telecommunications provider but 3 that they did not intend to provide telephone service. 4 Q Could you please turn to rebuttal, page 5 4. 6 A This is my rebuttal. 7 Q Yes. Your rebuttal page 4. 8 A I have got it. 9 Q Starting at about line 13, do you see a 10 couple of sentences that talk about DSLAM 100-pair 11 cable field connection points. Do you see a sentence 12 with those words in it? 13 A Yes, I do. 14 A.L.J. KIRKPATRICK: I am sorry. What 15 line are we on? 16 MR. OPPEDAHL: Lines 13 through 17, 17 rebuttal, page 4. 18 A.L.J. KIRKPATRICK: Page 4. 19 MR. OPPEDAHL: Thirteen through 17. 20 BY MR. OPPEDAHL: 21 Q If I were to show you a map of the 22 neighborhood, would you be able to point to the place 23 where you understand the DSLAM would be installed? 24 A I have seen that in the past. Whether I 25 could point that out to you on a map today, I do not 94 1 know. 2 Q Same question for the field connection 3 points. 4 A That's correct. 5 Q Same answer? 6 A.L.J. KIRKPATRICK: Same answer. 7 BY MR. OPPEDAHL: 8 Q Same answer being maybe you could point 9 it out but maybe not. 10 A That's correct. 11 Q Do you have an opinion -- and I 12 understand it might go either way. Do you have an 13 opinion as to whether the Co-op's proposed 14 interconnection is technically feasible? 15 MR. TYMKOVICH: Your Honor, I think it's 16 beyond the scope of the direct examination. 17 MR. OPPEDAHL: I should point out that, 18 if need be, I could simply state that we're calling 19 Mr. Easton as a witness called by us. You and I spoke 20 last month. We wouldn't want to have to subpoena him 21 if we wanted to call him as a witness, so we would be 22 able to just call him as a witness and start asking 23 questions, we would be able to treat him as an adverse 24 witness and ask him leading questions. 25 MR. TYMKOVICH: Your Honor, we have had 95 1 no such conversation and he has rested his case and 2 we're on cross on his direct and the question was 3 beyond the scope of direct. 4 MR. OPPEDAHL: Withdrawn. 5 A.L.J. KIRKPATRICK: We need to keep to 6 the direct testimony. 7 BY MR. OPPEDAHL: 8 Q At rebuttal, page 5 -- can you turn to 9 rebuttal, page 5. Could you turn to line 18. The 10 sentence that starts with, "Intention and reality. . ." 11 Do you see that line? 12 A I do. 13 Q There's a sentence starting there, 14 "Despite Qwest's intensive training and safety 15 awareness programs, accidents do occur and field 16 technicians do get injured." Do you see that? 17 A Yes, I do. 18 A.L.J. KIRKPATRICK: You actually misread 19 that. You said "intensive" instead of "extensive," but 20 the rest of it was correct. 21 MR. OPPEDAHL: I apologize. 22 BY MR. OPPEDAHL: 23 Q Line 20, you state that Qwest's local 24 network organization had nearly 1200 OSHA reportable 25 injuries in 2001. Do you see that? 96 1 A Yes, I do. 2 Q How many of those 1200 injuries were 3 caused by the fault of carriers providing -- 4 interconnecting carriers providing SDSL services? 5 A I -- that I cannot tell you. 6 Q Do you know if there were any? 7 A No, I do not. 8 Q As far as you are aware, it might be that 9 none of them were caused by carriers -- interconnecting 10 carriers providing SDSL services? 11 MR. TYMKOVICH: Your Honor, asked and 12 answered. 13 A.L.J. KIRKPATRICK: He said he doesn't 14 know. 15 BY MR. OPPEDAHL: 16 Q Did you assist in the preparation of 17 Qwest's responses to requests for admission posed by 18 the Co-op? 19 A I assisted in preparation of some but not 20 all. 21 Q Request 101 asks, "Admit that Qwest has 22 not required the Willowbrook Metropolitan District to 23 provide an insurance policy naming Qwest as a 24 beneficiary as a condition of making use of copper 25 pairs from Qwest in the neighborhood." Did you assist 97 1 in preparing Qwest's response to that request? 2 A I don't recall whether I assisted. I 3 certainly reviewed that. 4 MR. OPPEDAHL: I have handed the witness 5 a copy of the request and Qwest's response. Depending 6 on the answers, it might not be necessary to -- I am 7 sorry to say, I guess I have one copy there. I don't 8 yet know whether I will need to mark this as an 9 exhibit. It depends on the answer I get. I would like 10 to save marking the exhibit for circumstances where 11 it's needed. 12 BY MR. OPPEDAHL: 13 Q Have you seen this request and this 14 response of Qwest? 15 A Yes, I have. 16 Q Before today? 17 A Yes, I have. 18 Q Before today? 19 A Yes. 20 Q Did you assist in preparing this 21 response? 22 A I can't recall whether I directly 23 assisted. I certainly was involved in the review of 24 the response. 25 Q You see a place in here where it says, 98 1 "Qwest has total control of finished services and thus 2 Qwest provides the insurance." Do you see that? 3 A I do. 4 MR. OPPEDAHL: I will take this back and 5 not mark it, unless you feel it's necessary. 6 BY MR. OPPEDAHL: 7 Q Could you please turn to your rebuttal, 8 pages 6 and 7. Let's start with page six. Turn to 9 line 16. Do you see your use of the term, "finished 10 services," on line 16? 11 A Yes, I do. 12 Q And what is your definition of finished 13 services? 14 A Finished service is where Qwest provides 15 the service from beginning to end, and where no one 16 else provides a portion of that service. An example of 17 that would be your Plain Old Telephone Service. 18 Q POTS service? 19 A That's right. 20 Q The subloops that the Co-op wishes to 21 rent, you would not count those as finished services; 22 is that right? 23 A No, I would not. Those are Unbundled 24 Network Elements. 25 Q And the reason is that Qwest does not 99 1 provision the service end-to-end with those subloops; 2 is that right? 3 A The reason is that Ruby Ranch has chosen 4 to purchase an Unbundled Network Element, as they are 5 allowed under the telecommunications act. 6 A.L.J. KIRKPATRICK: Slow down here, 7 Mr. Oppedahl. What are you doing? You have some 8 markers in your hand. 9 MR. OPPEDAHL: With Your Honor's 10 permission, I was going to draw a diagram that's 11 intended to get some more detail from the witness as to 12 what he counts as a finished service in the case of 13 POTS service, so we may compare it with subloops. 14 MR. TYMKOVICH: I guess that I would 15 object as beyond the scope and also irrelevant. We're 16 talking about the cost of Unbundled Network Elements in 17 this docket and insurance issues, Your Honor. 18 A.L.J. KIRKPATRICK: Well, he has talked 19 about finished services, and I think he is making -- he 20 is trying to distinguish between insurance is not 21 required for finished but is required for nonfinished. 22 I think it's clearly within the scope of the testimony. 23 I just want to make sure it's useful. It's using 24 something you need to -- I am not a big fan of 25 demonstrative evidence, in case you can't tell 100 1 Mr. Oppedahl, but if it's really going to be helpful -- 2 MR. OPPEDAHL: Well, let me try to 3 proceed purely verbally and -- 4 A.L.J. KIRKPATRICK: Well, what are you 5 going to draw? Just give me a little something to go 6 on. 7 MR. OPPEDAHL: To save the trouble, let 8 me just try to proceed verbally. I apologize for the 9 delay. 10 A.L.J. KIRKPATRICK: No apology is 11 necessary. If it's useful, it's fine. I want to make 12 sure it's going to be useful. 13 MR. OPPEDAHL: I will withdraw what I was 14 proposing to do with the easel. I will just proceed. 15 A.L.J. KIRKPATRICK: Let's just proceed. 16 BY MR. OPPEDAHL: 17 Q POTS is finished service; is that right? 18 A It is, and perhaps I can clarify here. 19 The difference between what the Co-op is proposing -- 20 Q I am sorry. I was just looking for a 21 "yes" or "no". 22 A.L.J. KIRKPATRICK: You will have a 23 chance on redirect to supplement your answer. 24 THE WITNESS: That's fine. 25 A.L.J. KIRKPATRICK: Limit yourself to 101 1 the question asked. 2 BY MR. OPPEDAHL: 3 Q Do you attach any meaning to the 4 three-letter acronym, CPE? 5 A Yes, I do. 6 Q What does CPE mean? 7 A Customer Premise Equipment. 8 Q Do POTS customers ever have CPE? 9 A Yes. All POTS customers are required to 10 have CPE in order for the service to work. 11 Q That includes, in the case of most POTS 12 customers, inside wiring provided by somebody other 13 than Qwest; is that right? 14 MR. TYMKOVICH: I would object again as 15 beyond the scope. 16 MR. OPPEDAHL: I am trying to probe the 17 meaning of finished service and the witness's own 18 testimony. 19 A.L.J. KIRKPATRICK: Overruled. 20 MR. OPPEDAHL: I will ask the reporter to 21 read back the question. 22 A.L.J. KIRKPATRICK: The question was, do 23 they have inside wiring provided by someone other than 24 Qwest. 25 THE WITNESS: They can, yes. 102 1 BY MR. OPPEDAHL: 2 Q Indeed, now, in the year 2002, by far the 3 majority of the POTS customers served by Qwest in 4 Colorado have inside wire provided by someone other 5 than Qwest; isn't that right? 6 A I don't know what that percentage would 7 be, but certainly a large percentage would be nonQwest; 8 that's correct. 9 Q More than half? 10 A That I don't know. 11 Q More than a third? 12 A That I don't know. 13 Q Does your house have inside wire provided 14 by someone other than Qwest? 15 A No. 16 Q Do POTS customers served by Qwest in 17 Colorado have telephone instruments provided by someone 18 other than Qwest? 19 A Yes. 20 Q So it isn't really an end-to-end service 21 provided by Qwest, is it? 22 A By my definition, yes, it is. 23 Q And how is it that your end-to-end 24 definition doesn't include the telephone the person is 25 talking on? 103 1 A Because, by my definition, our provision 2 of the service ends at the Network Interface Device 3 outside somebody's house. 4 Q So, let me see if I follow. So if you 5 are -- if the service provided by Qwest does extend all 6 of the way to the Network Interface Device, you would 7 count that as a finished service at that end; is that 8 right? 9 A In the case of POTS, that's correct. 10 Q Okay. Now, suppose a POTS customer picks 11 up the telephone and dials a long distance call and the 12 call goes through. Doesn't that mean that the other 13 end of the call is being provided by somebody other 14 than Qwest, in many cases? 15 A Depending on where that call goes, it 16 could or it might not be. 17 Q Yeah. If it goes to an area that's 18 outside the LATA for the customer, it's going to be 19 terminated by a long distance carrier other than Qwest, 20 right? 21 A No, that's not correct. 22 Q Well, if it's going to New York, it would 23 be finished by somebody other than Qwest, right? 24 A Yes. 25 Q And yet you still call that a finished 104 1 service with Qwest providing the service end-to-end? 2 A No. The POTS portion of that I would 3 call a finished service. 4 Q Where does the POTS portion end for that 5 long distance phone call? 6 A When it's handed off to the long distance 7 carrier. 8 Q What name do you give to the place where 9 it's handed off? 10 A I can't give the technical name for it -- 11 that. 12 Q Whatever that place? 13 A It would be the carrier's Point Of 14 Presence. 15 Q That carrier Point Of Presence is the 16 end, as far as your definition is concerned, of the 17 end-to-end finished service? 18 A That's correct. 19 Q Suppose the POTS customer dials a local 20 telephone number where the local -- where the 21 destination phone number has to be provided by 22 interconnecting facilities-based POTS carriers, and 23 suppose the call goes through. Doesn't that mean that 24 termination of the call is being provided by someone 25 other than Qwest? 105 1 A Yes. 2 Q And even that, then, you would say that 3 POTS service counts as an end-to-end finished service; 4 is that right? 5 A Yes. 6 Q And your end-to-end runs from the Network 7 Interface Device at one end to the Point of Presence of 8 the interconnecting company at the other end, right? 9 A That's correct. 10 Q And the part that's in between is what 11 you call the finished service end-to-end provided by 12 Qwest? 13 A That's correct. 14 Q Let's talk about LADS service for a 15 moment. LAD service provides connection with metallic 16 copper pair from two points; is that right? 17 A That's correct. 18 Q Is that finished service? 19 A Yes. 20 Q Now, at the places where those copper 21 pairs end, Qwest would, as a matter of routine, provide 22 a Network Interface Device, right? 23 A That's correct. 24 Q So the connection is from one 25 Interconnect Interface Device to another, and that's a 106 1 finished service, end-to-end, between the two Network 2 Interface Devices; is that right? 3 A That's correct. 4 Q And the way you know it's finished, that 5 everything between the two Network Interface Devices is 6 provided by Qwest? 7 A Yes. 8 Q Let's talk about the copper pairs that 9 are used by Willowbrook Metropolitan District to turn 10 pumps on and off to pump water within the neighborhood, 11 the Ruby Ranch neighborhood. You gave some testimony 12 about that, right? 13 A I did. 14 Q And you chose to be cautious in your 15 statements because at the time you didn't know whether 16 the Willowbrook Metropolitan District had waived its 17 privacy rights, right? 18 A Right. 19 Q Your testimony was filed on the afternoon 20 of January 24th on that point, right? 21 A Yes. 22 Q Were you aware that the district waived 23 its rights on the morning of that day? 24 A There was some controversy about whether 25 the letter we received did fully waive those rights. 107 1 There was some question about whether the individual 2 sending the letter, in fact, represented Willowbrook. 3 Q Willowbrook Metropolitan District. But 4 the letter we're talking about was received by Qwest on 5 the morning of the 24th, right? 6 A That's correct. 7 Q Now, the confusion arose because Qwest 8 got that confused with Willowbrook Metropolitan 9 District down in Jefferson County, right? 10 MR. TYMKOVICH: Your Honor, it's beyond 11 the scope of the direct. 12 MR. OPPEDAHL: It's within the scope of 13 what he said 30 seconds ago. 14 A.L.J. KIRKPATRICK: We're getting beyond 15 the direct, so watch yourself. 16 MR. OPPEDAHL: Withdrawn. 17 BY MR. OPPEDAHL: 18 Q You are now aware that Willowbrook 19 Metropolitan District filed a waiver request with 20 Qwest? 21 A Yes. 22 Q Would you have supplemented the testimony 23 that you would have given on the 24th if you had been 24 under the impression that the district had waived? 25 MR. TYMKOVICH: Your Honor, the question 108 1 is beyond the scope of the direct. I don't think it's 2 a proper question in cross examination as to how he 3 might have testified in the past, given different 4 circumstances; that that's not what happened. 5 MR. OPPEDAHL: Withdrawn. 6 BY MR. OPPEDAHL: 7 Q Let's talk about the copper pair subloops 8 used within the district, by the district, to control 9 its wells. Have you seen any diagrams showing where 10 those copper pairs go to and from? 11 A No, I have not. 12 Q Are you aware that there are subloops 13 entirely within the district that go from one point to 14 another that the district uses to control the wells? 15 A I am not aware that Willowbrook is 16 purchasing any subloops from Qwest at this time. 17 Q No, no, no. I asked a very specific 18 question, and it doesn't have the word, "purchase," in 19 it. Are you aware that the district is using subloops 20 that are entirely within the district, from one point 21 to another within the district, to control pumps to 22 pump water within the district? 23 A According to the Qwest records, 24 Willowbrook is using loops, that's correct. 25 Q No, no, no. I respectfully request that 109 1 you answer the question as asked or explain why you 2 can't. I did not ask about loops. I asked about 3 subloops. 4 MR. TYMKOVICH: Your Honor, if it's not a 5 question, then it's argumentative with the witness. 6 MR. OPPEDAHL: I will try a third time. 7 A.L.J. KIRKPATRICK: Let's try again. 8 BY MR. OPPEDAHL: 9 Q Are you aware that the district uses 10 subloops, that are contained wholly within the 11 district, that do not leave the district, that they do 12 not go to a remote terminal, they do not go to the 13 Qwest Central Office, that go from one point in the 14 district to another point in the district, to control 15 water pumps that pump water for water tanks? 16 A I can tell you this: Willowbrook 17 purchases loops from Qwest. A portion of that loop 18 would be considered a subloop, and, so, yes, I would 19 assume they are using subloops. 20 MR. OPPEDAHL: Move to strike as 21 nonresponsive. I will try yet again. 22 A.L.J. KIRKPATRICK: He said they were 23 using subloops. 24 MR. OPPEDAHL: And I said that they were 25 wholly within the district. They did not go to remote 110 1 terminals. They did not go to the Central Office. The 2 witness then talked about loops, which, by definition, 3 do go, at least to the remote terminal and perhaps to 4 the Central Office. I am trying to, as hard as I can, 5 to ask the witness whether he is aware of subloops 6 completely within the district, that don't leave the 7 district, they don't go to a remote terminal, they 8 don't go to the Central Office. They only go from one 9 point in the district to another point within the 10 district, but the district uses it to control water 11 pumps. 12 A.L.J. KIRKPATRICK: Okay. Do you know 13 what -- how the district uses whatever it is that it 14 purchases from Qwest? 15 THE WITNESS: No, I do not. No, I do 16 not. All I can tell you is I know they purchase loops 17 from Qwest. 18 A.L.J. KIRKPATRICK: The answer is he 19 doesn't know. 20 BY MR. OPPEDAHL: 21 Q Those loops are POTS loops, right? 22 A That's correct. 23 Q The ones you are referring to? 24 A Yes. 25 Q Now I am asking you about loops that are 111 1 not POTS loops. They are subloops. You are not aware 2 of the district using such subloops? 3 MR. TYMKOVICH: Your Honor, the question 4 has been asked and answered. He doesn't know. 5 A.L.J. KIRKPATRICK: Doesn't hurt to 6 clarify. You are not aware of the district using just 7 subloops? 8 THE WITNESS: According to our records, 9 the district is purchasing loops. They are not 10 purchasing subloops. 11 A.L.J. KIRKPATRICK: Okay. I don't care 12 what they are purchasing, but the use. Are you aware 13 of what the district uses -- 14 THE WITNESS: No, I am not. All I can go 15 by is find out where they appear on our customer 16 records and what service they are purchasing. 17 A.L.J. KIRKPATRICK: You don't have any 18 personal knowledge? You haven't been out to inspect? 19 THE WITNESS: That's correct. 20 A.L.J. KIRKPATRICK: You haven't viewed 21 the connections? 22 THE WITNESS: I have not. 23 A.L.J. KIRKPATRICK: Let's move on. 24 BY MR. OPPEDAHL: 25 Q Let's talk about a single subloop of the 112 1 type the Co-op is hoping to rent to provide SDSL 2 service within the district. Such a subloop has, at 3 the end of some residential home, a Network Interface 4 Device, right? 5 A Yes. 6 Q The other end of that subloop, for the 7 Co-op to make use of it, would be somewhere fairly 8 nearby the place where we put the DSLAM, right? 9 A Yes. 10 Q What name do you give to that end of the 11 subloop? Do you call that another Network Interface 12 Device? 13 A I think maybe the appropriate person to 14 answer that question would be Mr. Hubbard. 15 Q Well, for me to do my questions, I need 16 to use some words to ask you about it. And I could 17 pick a term. If there's a term you are most 18 comfortable with, I would like to use that. 19 A I don't have a specific term, no. 20 Q Okay. So we'll call it the barn-end of 21 the loop is one end of the subloop and the Network 22 Interface Device at the residential home would be the 23 other end, right? 24 A Okay. 25 Q Okay. All of these services between the 113 1 Network Interface Device and the barn-end would be 2 provided by Qwest, right? 3 A That's correct. 4 Q No one else would be providing the 5 service between those two points, right? 6 A That's correct. 7 Q Doesn't that make it an end-to-end 8 finished service? 9 A By definition, under the act, it's an 10 Unbundled Network Element. 11 Q I am not asking that. Using the 12 definitions you stated, which is that you check to see 13 whether between the two points we're talking about, 14 everything is provided by Qwest. You have told us 15 repeatedly, for other things, that it's an end-to-end 16 finished service. Using your definitions, isn't that 17 an end-to-end finished service, the subloop in the 18 neighborhood? 19 A I would argue that it's an unbundled 20 loop. It's a portion of a total loop that would go all 21 of the way back to the Central Office. 22 Q No. It doesn't go to the Central Office, 23 does it? There's no connection to the Central Office 24 with a subloop that we would rent, is there? 25 A There can be. 114 1 Q No, we wouldn't want one, would we? 2 A No. You're purchasing a subloop. 3 Q Right, right. There would also be no 4 connection between the subloop we would rent and remote 5 terminal on Badger Road, would there? 6 MR. TYMKOVICH: Your Honor, again, it's 7 beyond the scope of the direct. There's no testimony 8 about how Ruby Ranch proposes to install its equipment. 9 That was in Mr. Oppedahl's testimony, not Mr. Easton's. 10 MR. OPPEDAHL: If I may, Your Honor. 11 A.L.J. KIRKPATRICK: I think, if you lay 12 a better foundation, we can get there. We're talking 13 about finished services. You are going to have to lay 14 a little foundation. 15 BY MR. OPPEDAHL: 16 Q The subloop that I am talking about, that 17 goes from a Network Interface Device to the barn-end is 18 end-to-end provided by Qwest, right? 19 A That's correct. 20 Q By your own definition that you have 21 given in testimony here today, doesn't that make it an 22 end-to-end finished service? 23 A I would not agree that that is a finished 24 service. 25 Q And the reason it's not a finished 115 1 service is what? There's another component of your 2 definition, namely it's not retail? 3 A That, and I did refer in my testimony to 4 retail finished service, I believe. 5 Q So, the way we figure out whether 6 something is finished or not is by checking to see 7 whether it's retail or wholesale; is that right? 8 A Subloops, such as what Ruby Ranch is 9 purchasing here, is considered Unbundled Network 10 Elements under the telecom act, and are, by definition, 11 thereby wholesale. 12 Q And because they are wholesale, by your 13 definition, they don't count as finished service? 14 A That's correct. 15 Q So you can't tell whether something is -- 16 A I should take that back. Because 17 wholesale does, in fact, sell finished service, but 18 there it is an Unbundled Network Element. 19 Q So, by your definition, the way you 20 figure out whether service provided by Qwest between 21 two points is finished or not includes a charge to 22 check to see whether it's an Unbundled Network Element; 23 is that right? 24 A The related issue here has to do with the 25 insurance requirement, and wholesale-services Unbundled 116 1 Network Elements do not have an insurance component 2 included in the price. Retail-finished services, on 3 the other hand, do have a component for insurance 4 included in the price. That's the distinction I was 5 attempting to draw in my testimony. 6 Q Well, to probe a little bit with what you 7 just said. Isn't your definition of finished service, 8 really, that if Qwest wanted to make somebody buy 9 insurance, Qwest will take the position that something 10 is not finished, isn't that really what it amounts to? 11 MR. TYMKOVICH: Your Honor, object. It's 12 argumentative and not included within the scope of his 13 direct. 14 A.L.J. KIRKPATRICK: Okay. 15 MR. OPPEDAHL: Withdrawn. 16 A.L.J. KIRKPATRICK: Sounds like 17 something for your brief. 18 MR. OPPEDAHL: Withdrawn. 19 A.L.J. KIRKPATRICK: How much more do you 20 have for this witness? 21 MR. OPPEDAHL: Depending on questions and 22 answers, I would guess half an hour. 23 A.L.J. KIRKPATRICK: Well, you need to 24 pick up the pace a little bit, because we have been 25 going off on many tangents lately. I want you to keep 117 1 focussed. 2 MR. OPPEDAHL: My apologies. 3 A.L.J. KIRKPATRICK: Let's stay focussed 4 and I will give you until noon. Then I think we're 5 going to take a break. That will probably be the end 6 of your cross, so -- absent extraordinary uncooperation 7 from the witness. 8 BY MR. OPPEDAHL: 9 Q Could you please turn to page 9 of your 10 direct testimony. Do you have it? 11 A I will shortly. I have got it. 12 Q Turn to line 10: "An uninsured 13 subcontractor working at Ruby Ranch could fall off a 14 ladder, and due to a lack of insurance by Ruby Ranch, 15 could seek damages from Qwest." Do you see that 16 sentence? 17 A I do. 18 Q Where -- you're postulating it's 19 something that you think could happen, right? 20 A Yes. 21 Q Where do you think this would be -- where 22 do you think this contractor would be exactly? Not 23 just at the Ruby Ranch neighborhood but where? At the 24 DSLAM? At the barn-end of the subloop? The 25 cross-connect box? Please tell me where you are 118 1 thinking. 2 A Perhaps the microwave tower. 3 Q The microwave tower. I was going to ask 4 you about that. Have you seen the microwave tower? 5 A No, I have not. 6 Q Do you know how tall it is? 7 A I do not. 8 Q Do you know if it's made of metal? 9 A No, I do not. 10 Q Do you know if it takes a ladder to get 11 to the top of the tower? 12 A No, I do not. 13 Q If you yourself had to get to the top of 14 the tower, do you know if you would need a ladder or a 15 step stool or something? 16 A Given my previous responses, I do not. 17 Q How do you know that the Co-op even has a 18 microwave tower? 19 A You acknowledge in your testimony that 20 you do have a microwave tower. That was part of your 21 ability to provide this service. 22 Q All right. I put it to you that you are 23 mistaken. I have never used the word "tower" in my 24 testimony, or in any testimony. 25 A I will accept that, subject to check. 119 1 Q Then your subcontractor working at the 2 ranch couldn't fall off of the microwave tower if there 3 isn't one? 4 A Agree with that. 5 MR. TYMKOVICH: Your Honor, I will 6 object. It's hypothetical, based on the testimony of 7 the cross-examiner, not on the record. 8 MR. OPPEDAHL: The witness is willing to 9 opine that the subcontractor could not fall off a 10 ladder while climbing a tower that doesn't exist. I 11 think I am entitled to go and try to understand where 12 the ladder is if it's not at the nonexistent tower. 13 A.L.J. KIRKPATRICK: I will allow it. 14 BY MR. OPPEDAHL: 15 Q So, where is the subcontractor doing this 16 if it's not at the tower? 17 A My point in putting this in here -- 18 Q I am sorry. Will you answer the 19 question? 20 MR. TYMKOVICH: He is allowed to answer 21 the question. May the witness be allowed to answer the 22 question? 23 MR. OPPEDAHL: Please proceed. 24 A.L.J. KIRKPATRICK: Okay. Let's hear 25 the answer. 120 1 THE WITNESS: My point in putting this in 2 here was to gave a hypothetical, and perhaps given the 3 fact that your microwave tower is not a tower, it was 4 not the most appropriate example, but that there are 5 occasions where people are going to be working around 6 the equipment and injuries could occur. I notice, for 7 example, you're going go be burying 100-pair cable. I 8 don't know specifically how you are going to do that, 9 but I can give you a number of examples, and in Qwest's 10 experience, where people working with backhoes have hit 11 our cables. We are currently involved in a case in 12 Wyoming -- 13 A.L.J. KIRKPATRICK: Okay. We're 14 drifting. That's sufficient. Okay. 15 BY MR. OPPEDAHL: 16 Q So, do you withdraw your suggestion that 17 a subcontractor working at Ruby Ranch could fall off a 18 ladder, and due to lack of insurance by the Co-op, seek 19 damages from Qwest? 20 A I don't know enough to withdraw that 21 specific example, no. 22 Q I am sorry. So you don't withdraw it. 23 You still feel it could happen? 24 A Yes. 25 Q Okay. So, where might the ladder be that 121 1 would have this unhappy thing happen? 2 A That I don't know. 3 Q You can't say where it would be? 4 A.L.J. KIRKPATRICK: Let's move on. 5 BY MR. OPPEDAHL: 6 Q You referred to burying a cable and a 7 concern that burying a cable could damage Qwest's 8 cable; is that right? 9 A Yes. 10 Q And, now, the cable that the Co-op would 11 bury would presumably go from the barn-end to the place 12 where the DSLAM is, right? 13 A Yes. 14 Q Is the barn-end anywhere near Qwest's 15 cable? 16 A No, not necessarily. 17 Q Right. In fact, we could bury the cable 18 on a Monday, and the barn-end could be installed on a 19 Tuesday, and we would be incapable of damaging Qwest's 20 cable while burying that Co-op cable? 21 A Depending -- if you had a backhoe out 22 there, who knows what could happen. 23 Q We do know what could happen if the 24 barn-end is distant from any Qwest cable. Then we 25 wouldn't be able to damage any Qwest cable by putting 122 1 in the 100-pair cable to where the barn-end is going to 2 be, right? 3 A I don't know what you are going to be 4 doing with the backhoe out there. 5 Q Okay. 6 A.L.J. KIRKPATRICK: Okay. We're just 7 arguing at this point. 8 MR. OPPEDAHL: Okay. 9 BY MR. OPPEDAHL: 10 Q You refer to, at line 13, Ruby Ranch 11 installing equipment that is incompatible with Qwest's 12 network. Do you see that? 13 A Are we still on page 9? 14 Q Yes, that's correct. 15 A I have got it. 16 Q Can you give an example of an 17 incompatibility of equipment with Qwest's network that 18 you are referring to there? 19 A I believe, by your testimony, that the 20 equipment that you are planning on installing at this 21 point is, in fact, compatible with Qwest equipment, but 22 Qwest has no assurance what's going to happen in the 23 future out at Ruby Ranch. I would assume, at some 24 point, that equipment is going to wear out and have to 25 be replaced. 123 1 Q Surely you don't think that the Co-op 2 would knowingly install equipment that was -- well, 3 okay. So the stuff that the Co-op could install in the 4 future might be incompatible is what you would say, 5 even if the DSLAM is not? 6 A Could be incompatible, could be 7 improperly installed. Again, we're not talking about 8 intentions here. We're talking about potential things 9 happening in the future. 10 Q Yes. And I am asking you about one of 11 those intentional things. Could you give an example of 12 an incompatibility that could occur? Incompatible with 13 what's in Qwest's network? 14 A In your testimony, you gave a great deal 15 of detail as to the specifications of the equipment you 16 are going to be installing, and apparently it is 17 compatible with the Qwest network. I don't know what 18 equipment might be installed in the future. 19 Q Well, if you don't know, you can't say it 20 would be incompatible then; is that right? 21 A I am saying there's a potential for 22 incompatibility. 23 Q Okay. Can you give an example of the 24 incompatibility that you think could happen in the 25 future? 124 1 A I think maybe Mr. Hubbard would be the 2 more appropriate witness for that. 3 Q With LADS service, is there danger that a 4 customer would connect something to the LADS service 5 that is incompatible with Qwest's network? 6 A To the extent there's a potential for 7 problems, Qwest assumes the liability and has insurance 8 to cover just that sort of thing. 9 MR. OPPEDAHL: Move to strike as 10 nonresponsive. 11 A.L.J. KIRKPATRICK: Answer the question, 12 if you would. Is there a risk of LADS -- 13 THE WITNESS: Yes. 14 BY MR. OPPEDAHL: 15 Q Is there a risk in a POT service that 16 someone would connect something that's not compatible? 17 A Yes. 18 Q Indeed that's worse with POT service. 19 The thing that somebody connects that's noncompatible 20 actually goes all of the way to the line card in the 21 remote terminal or Central Office, right? 22 A That's correct. 23 Q With one of your subloops, it doesn't go 24 to the remote terminal or Central Office, right? 25 A No. Although it is at our cross box. 125 1 Q Yeah. But it doesn't electrically 2 connect to any loops that go to the remote terminal or 3 Central Office? 4 A Again, I think Mr. Hubbard would be 5 best -- 6 Q You refer to power surges at line 16. Do 7 you see that? 8 A Yes. 9 Q Can you give an example of a power surge 10 that you fear could damage Qwest's equipment? 11 A A lightening storm would be one 12 potential. Again, I would defer to Mr. Hubbard as our 13 network technical expert, and I think he would probably 14 be able to give you a more detailed answer on that 15 point. 16 Q So, you are not in a position to provide 17 an answer to my question about what power surge you are 18 referring to? 19 A I was referring to lightening strikes, 20 would be one example. Power surge given off by a piece 21 of the equipment. What I am suggesting is you can 22 probably get a more detailed answer from the technical 23 expert we have brought here today. 24 Q And you are not a technical expert? 25 A No, I am not. 126 1 Q So, you really shouldn't have given this 2 opinion, should you? 3 A I believe it's an appropriate opinion. 4 Q An electrical short in a Co-op connection 5 to a subloop, that would somehow damage Qwest's 6 equipment; is that right? 7 A Conceivably. 8 Q Conceivably how would it do that? 9 A Again, I would defer to Mr. Hubbard. 10 Q So you don't know? 11 A That's correct. 12 Q Lightening striking the home of a POTS 13 customer could get into the phone line and damage 14 Qwest's equipment, right? 15 A Yes, it could. That's why Qwest has 16 insurance to cover that potential outcome. 17 MR. OPPEDAHL: Move to strike everything 18 following the word, "Yes." 19 A.L.J. KIRKPATRICK: Okay. It's 20 stricken. 21 MR. OPPEDAHL: Thank you. 22 BY MR. OPPEDAHL: 23 Q There's a place in your answer where you 24 talk about somebody being injured or killed. Can you 25 remind me where that -- oh, yes, sir. Line 19. Do you 127 1 see that? Injured or killed? 2 A Yes. 3 Q Do you really think that something that 4 the Co-op would do with this DSLAM could result in 5 somebody being injured or killed? 6 A Conceivably, yes. 7 Q How might that happen? 8 A Let me give you an example: Qwest is out 9 completing the installation of some service for you. 10 Qwest has the cross box open. There's an innocent 11 bystander who happens to be walking by, observing the 12 work that Qwest is doing. A car driven by a Ruby Ranch 13 volunteer happens to get out of control and strike that 14 innocent bystander. 15 Now, the family of that bystander, 16 perhaps the bystander themselves, if they were not 17 killed, is going to seek a claim against somebody. 18 Ruby Ranch does not have any insurance. Does not wish 19 to purchase any insurance. I argue that, in fact, 20 someone could make a claim against Qwest. 21 Q Are you assuming that the car accident is 22 somewhere nearby that cross box? 23 A Yes. 24 Q So if the car accident were, say, a 25 quarter of a mile away, you wouldn't think this would 128 1 be a problem, right? 2 A That would depend on circumstances. I 3 was giving you my example. My example, it happens by 4 the cross box. 5 Q Okay. If it happened 10 miles away, do 6 you think it would be a problem? 7 A I would have to know a little bit more 8 about your example. 9 Q Well, you were the one giving the 10 example. 11 A And, in my example, it happened at the 12 cross box. 13 Q Nearby to the cross box? 14 A Yes. 15 Q And I take it the way we -- the way we 16 figure out that they will sue Qwest is what? That they 17 notice that the cross box was open and they leaped to 18 the conclusion that that somehow has some connection 19 with the car accident; is that right? 20 A The person was observing the work being 21 done by Qwest. 22 Q I am sorry. The person in the car was? 23 A No. The person, bystander. 24 Q The bystander was, like, just on a walk 25 or something. They happen to see that cross box is 129 1 open and -- 2 A Stopped to observe the work being 3 performed by Qwest. 4 Q And had the bad luck to be run over by a 5 car driven by somebody who happens to be a volunteer 6 for the Co-op, right? 7 A That's correct. 8 Q If it were simply a resident of the 9 neighborhood, who didn't have anything to do with the 10 Co-op, you wouldn't think this could be a problem, 11 right? 12 A No. 13 Q What changes things is if the driver of 14 the car happens to be a volunteer from the Co-op? 15 A That's correct. 16 Q Even though they weren't doing anything 17 for the Co-op at that time? 18 A That's correct. 19 Q The mere fact that at some previous time 20 they had done some volunteer work for the Co-op, that 21 would make it so Qwest is targeted for a lawsuit? 22 A Or perhaps they were, at the time they 23 were behind the wheel of the car, on an errand for the 24 Co-op. 25 Q So, they were thinking about the Co-op at 130 1 the time they had their hands on the steering wheel? 2 A Were performing work at that time for the 3 Co-op. 4 A.L.J. KIRKPATRICK: Okay. Let's move 5 on. 6 MR. OPPEDAHL: Yes, Your Honor. 7 BY MR. OPPEDAHL: 8 Q Do you know Larry Brotherson? 9 A Yes, I do. 10 Q Who is he? 11 A Larry Brotherson is director for 12 wholesale advocacy for Qwest. Excuse me. Can I have 13 some more water? 14 A.L.J. KIRKPATRICK: Do you have a cup? 15 MR. TYMKOVICH: Judge, I will get it. 16 A.L.J. KIRKPATRICK: Okay. We had 17 Mr. Brotherson and his title. Was your answer complete 18 on that? 19 THE WITNESS: Yes. 20 A.L.J. KIRKPATRICK: Excuse me. I placed 21 that right in front of you. Would you move it so I can 22 see you. Thank you. 23 BY MR. OPPEDAHL: 24 Q Did Mr. Brotherson testify in the SGAT 25 proceeding on behalf of Qwest, and in 2001? 131 1 A Yes, he did. 2 Q What did he say was Qwest's position on 3 insurance? 4 A There were a number of things in that 5 testimony. Maybe you could be a little more direct. 6 Q You are aware of the part that I quoted 7 in my reply testimony. Mr. Brotherson saying that if 8 somebody didn't want to go into the Central Office, 9 they wouldn't need insurance. If they didn't want to 10 enter Qwest's premises, they wouldn't need insurance, 11 right? You are familiar with that sentence, right? 12 A I am familiar with the document you filed 13 as part of the case, yes. 14 Q He said that somebody -- the only way 15 somebody could avoid having to have insurance is if 16 they said, from the start, they would never want to 17 enter Qwest's premises, right? 18 A No, that's not quite what it says. 19 Q What does it say? 20 A Okay. First of all, if I may set the 21 context for this. Mr. Brotherson is responding 22 specifically to something XO has brought up. XO is a 23 company. And specifically what XO says, for its part, 24 XO does not propose any language change to Section 5.6, 25 but comments that the requirement that CLECs maintain 132 1 insurance is too broad and needs to be limited to 2 insurance to CLECs operating on Qwest's premises or 3 otherwise accessing Qwest network. 4 As Mr. Hubbard's testimony indicates, in 5 the case of the Co-op, they will, in fact, be 6 connecting with Qwest's network. Secondly, nowhere in 7 Mr. Brotherson's comments does he indicate that no 8 insurance is required. What he is talking about is 9 that the insurance requirement in the SGAT, namely $11 10 million, may not be appropriate. 11 MR. OPPEDAHL: Exhibit CO-13, please. 12 Actually, we have CO-13 in the record, don't we? 13 Hearing Exhibit 15, which is Exhibit CO-13. 14 BY MR. OPPEDAHL: 15 Q Is that the same thing that you have been 16 referring to? 17 A I just have an extract of that, but I 18 believe it's the same. 19 A.L.J. KIRKPATRICK: The page? 20 BY MR. OPPEDAHL: 21 Q The page you are referring to, 22 Mr. Easton, was a page numbered 31; is that right? 23 Actually, mine do not have page numbers. So, you are 24 referring to page 31. If you could turn to page 31 of 25 that exhibit, please. 133 1 A I have got it. 2 Q Line 7 and 8. Do you see a sentence that 3 starts," Unless the CLEC. . ." 4 A Yes. 5 Q The sentence reads, in its entirety, 6 "Unless the CLEC will agree not to enter Qwest's 7 premises for any purposes under the agreement, the 8 insurance requirement is entirely appropriate." Do you 9 see that sentence, right? 10 A Yes, I do. 11 Q And that's saying, if the CLEC will agree 12 not to enter Qwest's premises for any purposes, the 13 insurance requirement would not be appropriate, right? 14 A The $11 million requirement may not be 15 appropriate; that's right. 16 Q It doesn't say $11 million there. It 17 says "the insurance requirement," right? 18 A And the insurance requirement is 19 referring to the insurance requirement in the SGAT, 20 which is the $11 million requirement. 21 Q There's nothing in that sentence about 22 connecting to Qwest's network, is there? It just talks 23 about entering Qwest's premises. 24 A Again, as I noted in my previous 25 response, Mr. Brotherson is responding to a position 134 1 taken by Public Service Company, and that position is 2 laid out on page 30, lines 13 through 17. 3 A.L.J. KIRKPATRICK: Okay. The exhibit 4 stands on its own. The commission can interpret it. 5 Obviously the parties have different interpretations of 6 what it says. We're not going to resolve that today. 7 So, let's move on. 8 BY MR. OPPEDAHL: 9 Q So, is the Qwest position that 10 Mr. Brotherson took before the PUC on June 4th the same 11 position that Qwest took with the Co-op since June 1st 12 of 2001? 13 A Not since June 1st of 2001, no, it is 14 not, but it is consistent with the position that Qwest 15 has ended up at with regard to insurance for Ruby 16 Ranch. 17 Q Well, I will try asking the question 18 differently. When Qwest wants XO to have to pay -- to 19 have lots of insurance because they do want to enter 20 Qwest's premises, that Qwest takes the position that 21 entering Qwest's premises is the important thing, yet 22 where the Co-op says it won't ever want to enter 23 Qwest's premises, Qwest says, if we don't want to enter 24 Qwest's premises, we still have to have insurance; 25 isn't that right? 135 1 A That's not the way I would characterize 2 it. As you know, Ruby Ranch's requirement for 3 insurance was reduced from $11 million to $1 million, 4 predicated on the fact that the Co-op would not be 5 collocating in Qwest's Central Offices. I would argue 6 that is very similar, if not identical, to the position 7 Mr. Brotherson took in this particular docket. 8 Q Suppose the commission were to determine, 9 in this arbitration matter, that Qwest is entitled to 10 impose its insurance requirement, and suppose the Co-op 11 were unable to secure such an insurance policy, 12 wouldn't this mean that the Co-op would not be able to 13 launch service? 14 MR. TYMKOVICH: Your Honor, it's a -- 15 calls for speculation. Beyond the scope of the direct. 16 A.L.J. KIRKPATRICK: Mr. Oppedahl. 17 MR. OPPEDAHL: I don't think it calls for 18 speculation. I think it calls for a simple "yes" or 19 "no" answer. If we can't get insurance, and if Qwest 20 ends up demanding we have insurance, as a condition of 21 launching service, wouldn't that mean we couldn't 22 launch service? 23 A.L.J. KIRKPATRICK: The way you defined 24 the question -- the way you versed the question is that 25 insurance is available. That's what we're here to 136 1 testify to, so I will sustain the objection. 2 BY MR. OPPEDAHL: 3 Q Did you read the reply testimony of 4 Mr. Oppedahl that said Mr. Easton -- "Unfortunately 5 Mr. Easton did not identify an insurance company that 6 he thinks would write an insurance policy for the 7 Co-op, so I can't verify an unsubstantiated claim." 8 A Yes. 9 Q Did you say, in your direct case of 10 testimony, say, certainly there are brokers out there 11 that would be willing to provide such coverage? 12 A Yes. 13 Q Who would they be? 14 A.L.J. KIRKPATRICK: I am sorry. I am 15 hearing whispering over there. Witness has turned. 16 It's very close to coaching. As you well know, no 17 coaching witnesses. I didn't see who said it, but 18 whoever said it -- 19 THE WITNESS: Excuse me. That's not why 20 I turned. 21 A.L.J. KIRKPATRICK: Okay. I heard a 22 voice. I looked up. It was a whisper. You can't 23 turn. You turned and looked at the Qwest table. 24 THE WITNESS: Perhaps I can explain why I 25 turned and looked at the Qwest table. 137 1 A.L.J. KIRKPATRICK: Okay. 2 THE WITNESS: What I would like to do, 3 one of the insurance companies -- 4 MR. OPPEDAHL: Not on my time. I am 5 supposedly getting cut off at noon. 6 A.L.J. KIRKPATRICK: I will give you 7 time, Mr. Oppedahl. Go ahead. 8 THE WITNESS: You asked if I was able to 9 give the name of one of the insurance companies. I was 10 turning to my counsel to indicate if we could provide, 11 as an exhibit, the insurance quote that I received. 12 MR. TYMKOVICH: Your Honor, I think there 13 are two issues. One is whether it's necessary to 14 identify the specific name of the broker, or whether he 15 can just testify about the contacts he had with the 16 insurance broker, because I think there was some 17 concern about confidentiality, but -- 18 A.L.J. KIRKPATRICK: What concern would 19 be confidential? A broker gives a quote, but he 20 won't -- it's not really a quote. What do you mean? 21 MR. TYMKOVICH: I guess it depends on 22 where the examination goes with the question. We don't 23 have an objection to providing information about 24 insurance. So, let me withdraw my objection, and we'll 25 see where the question goes. 138 1 A.L.J. KIRKPATRICK: Okay. The question 2 is, do you know the brokers who will provide the 3 insurance? 4 THE WITNESS: Yes. 5 BY MR. OPPEDAHL: 6 Q Who are the brokers? 7 A The specific quote I was just referring 8 to came through Farmers Insurance. And they were able 9 to secure a quote from someone they deal with. 10 Q So you, yourself, personally dialed up 11 Farmers Insurance and asked about this? 12 A Yes. 13 Q Do you remember what phone number you 14 dialed? 15 A No, but I could certainly go back through 16 my notes and provide that for you. 17 Q What city are they in? 18 A They are in Denver, Colorado. 19 Q And it would be under "F" in the phone 20 book? 21 A I would suppose so. 22 Q It would be under the word "Farmers" in 23 the phone book? 24 A I would assume so, yes. 25 Q Do you remember the name of the person 139 1 you spoke with? 2 A I would have that in my notes. 3 Q In your testimony, it talked about how 4 you thought insurance should be had for somewhere 5 between 1,000 and $1500 a year. Is that -- is this the 6 quote you are talking about? 7 A No, actually this one is not. 8 Q Oh. The quote that falls between 1,000 9 and $1500 a year, who was the broker for that? 10 A That was a broker who happens to be an 11 individual that Qwest deals with. I spoke to that 12 broker, did not get a firm quote from that broker, but 13 that broker indicated to me that such insurance would 14 be available. He would estimate it between 1,000 and 15 $1500. 16 Q That person's name is? 17 A I am not willing to provide that 18 individual's name. 19 Q So, it would not be of any help to the 20 Co-op, would it? 21 A This individual, in fact, did indicate 22 that he would be willing to help the Co-op find 23 somebody. My point here was that I was able to pick up 24 the phone and make a couple of phone calls and find 25 that this insurance is available. 140 1 Q But the only one you are willing to give 2 me the name of is Farmers Insurance? 3 A Yes. The other was not a firm quote. It 4 was this particular broker's view that such insurance 5 is available. 6 Q So, when you stated that there are 7 certainly brokers, "brokers" in the plural, who would 8 be willing to provide such insurance, you didn't talk 9 to brokers, in the plural, who said they would be able 10 to provide such insurance? 11 A I did not get a firm quote from more than 12 one broker. As I indicated, the other individual I 13 spoke with indicated that there were brokers out there. 14 Q The one firm quote you did get had what 15 annual premium? 16 A With taxes and fees, it was approximately 17 $1,000. 18 A.L.J. KIRKPATRICK: That was from 19 Farmers? 20 THE WITNESS: Yes. Again, it was through 21 Farmers, but it was someone they dealt with, who 22 actually does the underwriting. 23 BY MR. OPPEDAHL: 24 Q Is it your view that -- you are aware 25 that in Qwest's answer in this case, it refers to Ruby 141 1 Ranch's as a "luxury neighborhood," right? 2 A I did not refer to Ruby Ranch as a luxury 3 neighborhood in any of my testimony. 4 MR. OPPEDAHL: That was not the question. 5 Move to strike as nonresponsive. You are aware that 6 Qwest, in its answer -- 7 A.L.J. KIRKPATRICK: It wasn't 8 responsive, but I am wondering where we're going with 9 the questions, Mr. Oppedahl. 10 BY MR. OPPEDAHL: 11 Q Is it your view, if we can afford to pay 12 for the insurance, that makes it okay for Qwest to 13 require it? 14 A I guess I don't understand the question. 15 Qwest requiring the insurance has nothing to do with 16 whether someone can afford it or not. 17 Q Well, in your testimony, you went to the 18 point of actually dividing up the annual premium by the 19 number of Co-op subscribers and number of months in the 20 year to work out what that was, the monthly cost per 21 subscriber, right? 22 A That's correct. 23 Q Your goal there was to show it was a 24 small number, presumably the point being it was easy to 25 pay, right? 142 1 A No. My point there was to respond to the 2 Co-op's comment that, No. 1, insurance was not 3 available, and, No. 2, it was not affordable. And what 4 I hoped to demonstrate there is it was both available 5 and affordable. 6 Q Even though the cost per month is higher 7 than the cost of the subloop, right? 8 A That's correct. 9 Q So, more than doubling our monthly costs 10 is something you feel is economically reasonable? 11 A That is not for me to determine. 12 Q But in your testimony you said it was 13 reasonable, right? 14 A On the face of it, and, again, I can't 15 say what's appropriate for the cooperative members. 16 When I look at that number, that doesn't look like an 17 unreasonable number. 18 Q Even though it doubled -- it's more than 19 double the other monthly costs? 20 A Well, again, I don't think that is the 21 way you look at it. I think you look at the absolute 22 number itself. 23 Q And if the absolute number is, in your 24 opinion, small, then it's reasonable to impose 25 insurance, right? 143 1 A Again, that's not why insurance is 2 required by Qwest. 3 Q If Ruby Ranch were an urban renewal 4 neighborhood, would your answer be different about 5 whether the insurance is reasonable? 6 A Possibly. 7 Q During the interconnect negotiations 8 between the Co-op and Qwest, that started in June of 9 2001, did the Co-op ever ask for data supporting the 10 costs for the prices Qwest was quoting to the Co-op? 11 MR. TYMKOVICH: Your Honor, that's beyond 12 the scope of the direct examination. 13 MR. OPPEDAHL: The witness went on at 14 length in his direct talking all about how reasonable 15 Qwest was in its negotiations, and this goes to the 16 reasonableness that he said Qwest carried out. 17 MR. TYMKOVICH: The issue in the 18 arbitration is the cost of the subloops and field 19 connection quote preparation fee and insurance, not the 20 history of negotiations. 21 A.L.J. KIRKPATRICK: I think it's 22 irrelevant. You need to start wrapping up, 23 Mr. Oppedahl. 24 MR. OPPEDAHL: Yes, Your Honor. 25 BY MR. OPPEDAHL: 144 1 Q Turn to your direct testimony, page 8, 2 please. Let me know when you have it. 3 A I have it. 4 Q In your direct testimony, page 8, I start 5 to ask you about this, and somehow we got off track. 6 You said departing from these prices would violate the 7 act, right? 8 A That's correct. 9 Q And by that you mean departing from the 10 prices set in the SGAT; is that right? 11 A Yes. 12 Q Turning to direct, page 12 -- 13 A Excuse me. I would like to correct my 14 last answer. Actually, what I was referring to is the 15 prices that had been established in the commission's 16 December order. 17 Q Isn't that the same thing as prices set 18 in the SGAT? 19 A Yes. But they were not the same as the 20 prices that Qwest proposed in the SGAT. There's a 21 distinction I am attempting to make. 22 Q Turning to your direct, page 12. 23 A Yes. 24 Q You said that Qwest has no flexibility in 25 the prices that it charges? 145 1 A That's correct. 2 Q Why is that? 3 A Again, Qwest is bound by the prices that 4 have been set by this commission. 5 Q And that's because, to do otherwise, 6 would be discriminatory, under the communication's act? 7 A Yes. 8 Q Now, the fact is the nondiscriminatory 9 requirement is one of three requirements. The other 10 two are prices have to be just and reasonable; is that 11 right? 12 A That's right. 13 Q It's not just prices but terms and 14 conditions, also, have to be just and reasonable, 15 right? 16 A That's correct. 17 Q Why doesn't the nondiscriminatory 18 requirement require Qwest to impose on the Co-op the 19 same insurance requirements it imposes on others? 20 A The FCC and the rules implementing the 21 Telecom Act were very specific about how prices were to 22 be set for Unbundled Network Elements, namely, that 23 TELRIC methodology was to be used. On the other hand, 24 they are silent about insurance requirements; 25 therefore, Qwest has more flexibility in that area and 146 1 have used that flexibility to offer the Co-op a 2 different insurance requirement than they offer other 3 telecommunication providers. 4 Q Prices in the SGAT are averaged, right? 5 A That's correct. 6 Q In your own words, you said, this means 7 some will pay rates that are above actual cost and 8 others will pay rates that are below actual costs? 9 A Yes; that's correct. 10 Q Given this, can charging the two carriers 11 the same price ever be discriminatory? 12 A It would certainly open Qwest to charges 13 of that, yes. 14 Q Why is the insurance requirement Qwest is 15 presenting to the Co-op $1 million rather than two 16 million or 500,000? 17 A As I indicated in my testimony, Qwest was 18 able to be as accommodating as we felt we could be, 19 while at the same time protecting ourselves, and we 20 felt the $1 million insurance requirement was about as 21 low as we could go, while still providing minimal 22 protection. 23 Q But the number was really arbitrary, 24 right? 25 A In the sense -- 147 1 MR. TYMKOVICH: I am going to object. 2 He's answered the question. 3 BY MR. OPPEDAHL: 4 Q The number was arbitrary, wasn't it? 5 A.L.J. KIRKPATRICK: He was -- he can 6 answer. 7 THE WITNESS: No, it was not arbitrary. 8 It was arrived at in discussion with our risk 9 management folk, who felt they could live with that $1 10 million number. 11 BY MR. OPPEDAHL: 12 Q It was picked out of the air, wasn't it? 13 A No, it was not. 14 Q So, Qwest unilaterally determined what 15 they could live with. That's how the number was 16 picked, right? 17 A No. Qwest, in seeking to accommodate the 18 desires of the Co-op, knew that that $11 million was 19 not acceptable. We talked to our risk management to 20 see how low they were willing to go, and $1 million was 21 the figure they said they could not possibly go 22 beneath. 23 Q Yeah. So it was a unilateral choice by 24 Qwest, right? 25 A.L.J. KIRKPATRICK: Okay. Let's move 148 1 on. Do you have anything further? 2 MR. OPPEDAHL: Yes. I have two more 3 points, and then I will be done. 4 BY MR. OPPEDAHL: 5 Q The SGAT ordered on December 21st said 6 that three of four quote preparation fees were credible 7 for construction and the fourth one was not, right? 8 MR. TYMKOVICH: Your Honor, I object. 9 The question was vague, because what was ordered on 10 December 21st, that was in the decision, had to do with 11 the pricing issues related to the SGAT. It was not the 12 SGAT itself. 13 A.L.J. KIRKPATRICK: Why don't you give 14 me the question again, Mr. Oppedahl. 15 BY MR. OPPEDAHL: 16 Q The SGAT ordered on December 21st, 2001, 17 listed four quote preparation fees, three of which were 18 said to be credible towards construction and the fourth 19 of which was not, right? 20 A That's correct. 21 Q And the fourth one was the quote 22 preparation fee that the Co-op is going to have to pay, 23 right? 24 A I think the more appropriate way to put 25 it would be the three had to do with the collocation, 149 1 and one had to do with the field connection point quote 2 preparation fee. 3 Q Yes. And the field connection point 4 quote preparation fee was not listed as credible 5 towards construction, right? 6 A That's correct. 7 Q And yet Qwest has told the Co-op in our 8 negotiations it will be credible towards construction, 9 right? 10 A It depends on how you define if the end 11 result for all four quote preparation fees are the 12 same. 13 Q You can tell that by reading the results 14 of the December 21st order? 15 A No. 16 Q So, would anyone know, other than by 17 asking you? 18 A Would ask me or, hopefully, over the 19 course of the negotiations, it would be made clear. To 20 the extent that one of the parties was not comfortable 21 that it was clear enough, that would be written into 22 the terms of the agreement so everyone understood 23 exactly what was being offered. 24 Q Now, suppose the actual construction 25 costs of the field connection point were less than the 150 1 quote preparation fee. Would the excess be refunded to 2 the customer? 3 A No. 4 Q Turn to your reply, page, 1, please. 5 A This is my rebuttal testimony, page 1? 6 Q Yes, please. 7 A I have got it. 8 Q You state that the Co-op witness has 9 misconceptions about the regulatory issues in this 10 proceeding. 11 A That's correct. 12 Q You feel the commission should believe 13 you about regulatory issues rather than believing the 14 Co-op witness; is that right? 15 A Yes, I do. 16 Q Turn to your reply, page 12, please. Do 17 you see where you say, "This provision offers CLECs the 18 ability to pick and choose. . ." 19 A And what specific line are we referring 20 to? I have got it, lines 3 and 4. 21 Q Okay. Yeah. Read the whole sentence, 22 please. 23 A "This provision offers CLECs the 24 opportunity to pick and choose favorable terms provided 25 to other CLECs in their interconnect agreements." 151 1 Q And have you studied the FCC rules about 2 this? 3 A Yes, I have. 4 Q Handing the witness FCC Rule 51.809, 5 which, if need be, can be marked as an exhibit, 6 although I suspect we wouldn't need to mark it as an 7 exhibit. And turn down to 51.809(b), which begins, 8 "The obligations of Paragraph A of this section shall 9 not apply. . ." Do you see that? 10 MR. TYMKOVICH: I am sorry. I lost where 11 you were. 12 THE WITNESS: I am sorry. I did as well. 13 BY MR. OPPEDAHL: 14 Q Turn to the second page of what I handed 15 you. 16 A.L.J. KIRKPATRICK: Do you have a copy 17 for me, Mr. Oppedahl? 18 MR. OPPEDAHL: I am very sorry. I don't. 19 I don't suppose -- 20 MR. TYMKOVICH: Your Honor, you may have 21 mine. I have got it. 22 MR. OPPEDAHL: Here, Your Honor. 23 A.L.J. KIRKPATRICK: Thank you. 24 BY MR. OPPEDAHL: 25 Q Okay. The paragraph headed with lower 152 1 case b, "The obligations of Paragraph A of this section 2 shall not apply. . ." Do you see where that starts? 3 A Yes. 4 Q Okay. It goes on to say that the pick 5 and choose obligations shall not apply where the 6 incumbent LEC proves to the state commission that the 7 cost of providing a particular interconnection service 8 or element to the requesting carrier are greater than 9 the cost of providing it to the carrier that originally 10 negotiated the agreement. Do you see that? 11 A That's correct. 12 Q Doesn't this mean that you are mistaken 13 when you say that this provision offers CLECs the 14 ability to pick and choose, since, after all, if a rate 15 were given to the Co-op, somebody else tried to opt in, 16 and the costs to serve them were higher, you could 17 refuse? 18 A No, it does not. 19 Q I asked you earlier about TELRIC. TELRIC 20 methodology includes indirect and common costs; is that 21 right? 22 A No, it's actually joint and common costs. 23 Q Joint and common costs. Those joint and 24 common costs include insurance, do they not? 25 A No. 153 1 Q They don't? 2 A I don't believe that is a specific 3 element of our cost study. 4 Q I'm very close to the end. Turn to your 5 rebuttal, page 11, please. Let me know when you are 6 there. You have got it? 7 A I have got it. 8 Q You say, "Mr. Oppedahl provides no TELRIC 9 cost study as required by the act to substantiate his 10 figure." Do you see that? 11 A What line are you on? 12 Q I have got -- 13 A.L.J. KIRKPATRICK: 13. 14 THE WITNESS: Line 13. 15 BY MR. OPPEDAHL: 16 Q Do you see the sentence? 17 A Yes. 18 Q Is it Qwest's position that the Co-op is 19 required by the act to prove its case using TELRIC? 20 A No. It's Qwest's position that a TELRIC 21 study is required to set prices that are reasonable and 22 nondiscriminatory. 23 Q So you don't think that the Co-op is 24 required by the act to prove its case using TELRIC? 25 A Yes, I do. 154 1 Q I am sorry. You do think that the Co-op 2 is required by the act to prove its case using TELRIC? 3 A Yes. 4 Q Can you point to the place in the act 5 that you think requires this? 6 A The act -- it's actually not the act 7 itself, but the FCC, in its implementation or order 8 around the act, specifies that prices for Unbundled 9 Network Elements, such as those that would be purchased 10 by the Co-op, are to be set using TELRIC costing 11 principles. 12 Q You added an errata notice to one of your 13 exhibits, right? 14 A Yes, I did. 15 Q What is the significance of the errata 16 notice to your testimony? 17 A The order itself laid out what the 18 different recurring and nonrecurring prices were. And 19 for many of the recurring prices, they had different 20 prices for difference zones. But the -- what the 21 errata does is lay out what wire centers are in the 22 different zones. So I thought it would be appropriate, 23 just for clarity of the record, to say that we were 24 able to show which wire centers, including the wire 25 center which serves Ruby Ranch, are in which zones. 155 1 Q And the wire center that serves the Ruby 2 Ranch neighborhood is, in your terminology, the Dillon 3 Central Office; is that right? 4 A.L.J. KIRKPATRICK: Is the what Central 5 Office? 6 MR. OPPEDAHL: Dillon, D-i-l-l-o-n 7 Central Office. 8 THE WITNESS: That's correct. That is 9 correct. 10 BY MR. OPPEDAHL: 11 Q Is that listed as being in Zone 2 in your 12 erratum? 13 A Yes, it is. 14 Q That would mean that you feel that the 15 recurring cost for our subloops would be the Zone 2 16 recurring cost? 17 A That's not up to me to determine. The 18 commission has decided which wire centers are in which 19 zone. If, in fact, Ruby Ranch is served out of the 20 Dillon wire center, it's in Zone 2. 21 Q Let me try the question again: The 22 recurring costs which Qwest feels the Co-op should pay 23 to rent subloops is the recurring costs for Zone 2; is 24 that right? 25 A Again, if Ruby Ranch is served out of the 156 1 Dillon wire center, the Zone 2 prices are what will be 2 charged to the Co-op. 3 Q Well, I will ask you to turn, please, to 4 Exhibit 26, which is WRE-1. 5 MR. TYMKOVICH: Your Honor, again, I 6 think it's beyond the scope of the direct. There was 7 no testimony on the recurring costs. It's not an issue 8 here, and I don't think it's relevant. 9 MR. OPPEDAHL: Well, the witness changed 10 his exhibit an hour ago. Now I would like to know what 11 it means, and I have just been surprised that suddenly 12 it's, instead of being in the base rate area, I seem to 13 be hearing he thinks we should be paying a Zone 2 14 price. It makes a world of difference. It triples the 15 price for our subloops. 16 A.L.J. KIRKPATRICK: Well, it's more like 17 two hours ago, but I will allow a little bit, and then 18 we really are going to have to wrap-up, Mr. Oppedahl. 19 BY MR. OPPEDAHL: 20 Q You feel that the price Qwest should be 21 able to charge is the Zone 2 price; is that right? 22 A That's correct. That is what was ordered 23 by this commission. 24 Q Again, your Exhibit 26, WRE-1, will you 25 turn to the place in Exhibit A where the subloop 157 1 recurring prices are shown. 2 A Okay. 3 Q That's page 2 of 4 of Exhibit A; is that 4 right? 5 A That's correct. 6 Q And you feel that the monthly recurring 7 costs that should be paid is $18.37; is that right? 8 A No, that's not correct. 9 Q That's what it says in your exhibit, 10 right? 11 A That is what it says in my exhibit. This 12 is the rate that Qwest filed in the SGAT, but keep in 13 mind that the zone structure that Qwest filed in the 14 SGAT is a different scope of zone structure than was 15 adopted by this commission in the December 21st order. 16 Q And the erratum is which of those two? 17 A The erratum is neither of those two. The 18 erratum lists wire centers that are in the various 19 zones under what Qwest filed in the SGAT, and what's in 20 my exhibit, there were different zones within each wire 21 center, depending on the distance that the customer was 22 from the Central Office. That structure is different 23 than what the commission finally ordered in December. 24 There they went to a wire center deaveraging, so the 25 entire wire center is in a particular zone, and those 158 1 zones more or less correspond to whether it's rural or 2 urban. So you cannot compare the two zones' 3 structures. They are different. 4 Q Exhibit 26 is supposedly the agreement 5 Qwest proposed to the Co-op in January of this year, 6 right? 7 A This is what had been discussed with the 8 Co-op. This exhibit was not updated for the prices 9 that were ordered by the commission. Although, as I 10 noted in my testimony, Qwest will be bound by whatever 11 the resulting prices are. As you know, that order is 12 not a final order at this point. Whatever the 13 commission finally decides, those prices are the ones 14 that will be offered to the Co-op. 15 Q Do you feel that any given 16 interconnecting customer, such as the Co-op, should be 17 in the same zone for subloops as for loops? 18 A I can't make that determination. Again, 19 it's up to the commission. They are the ones who set 20 up the particular zone structure that was laid out in 21 the decision of December 21st. 22 Q Do you feel it's up to the commission to 23 decide what the appropriate level of insurance coverage 24 should be? 25 A I feel that the commission agreed to 159 1 review an interconnection agreement to see if the terms 2 and conditions are reasonable, yes. 3 Q If the commission thought the insurance 4 should be $500,000 instead of a million, do you think 5 that would be something the commission can determine? 6 MR. TYMKOVICH: Calls for speculation. 7 Object. 8 A.L.J. KIRKPATRICK: Overruled. 9 THE WITNESS: The commission has the 10 authority, under the telecommunications act, to review 11 any interconnection agreement and approve or disapprove 12 it. 13 BY MR. OPPEDAHL: 14 Q Including picking a different insurance 15 amount if the commission thinks some different amount 16 would be the right one? 17 A Obviously, we're here today in an 18 arbitration that is looking at just that issue. 19 A.L.J. KIRKPATRICK: I need you to finish 20 up, Mr. Oppedahl. 21 MR. OPPEDAHL: Your witness. I am done. 22 A.L.J. KIRKPATRICK: Okay. How much 23 redirect do you have? 24 MR. TYMKOVICH: Probably not very much. 25 I will review it over the noon hour and -- 160 1 A.L.J. KIRKPATRICK: If it's ten minutes 2 or less -- 3 MR. TYMKOVICH: I think it would be less 4 than 10 minutes. 5 A.L.J. KIRKPATRICK: If it's 10 minutes 6 or less, I would like you to do it just now. 7 MR. TYMKOVICH: Your Honor, if I could, I 8 think I can get it down to ten minutes after I review 9 my notes. I would prefer the lunch hour, so I could 10 narrow the scope. 11 A.L.J. KIRKPATRICK: I am going to have 12 to instruct you not to talk to the witness about 13 anything related to his testimony over the lunch hour. 14 You are aware of that anyway. 15 MR. TYMKOVICH: Certainly. 16 A.L.J. KIRKPATRICK: Just so you 17 understand that. You can have lunch with him. I 18 expect you not to go over -- coaching, anything like 19 that. 20 MR. TYMKOVICH: Certainly. 21 A.L.J. KIRKPATRICK: Okay. All right. 22 Let's take a one hour and fifteen minute lunch break. 23 Resume in an hour and fifteen minutes. 24 (Recess.) 25 A.L.J. KIRKPATRICK: Are we ready to 161 1 resume then, Mr. Tymkovich? 2 MR. TYMKOVICH: Yes, sir. 3 REDIRECT EXAMINATION 4 BY MR. TYMKOVICH: 5 Q Good afternoon, Mr. Easton. 6 A Good afternoon. 7 Q Prior to the lunch break, you were 8 examined by Mr. Oppedahl on a number of issues relating 9 to the Qwest insurance requirement for customers that 10 wanted to enter into an interconnection agreement. Do 11 you recall that testimony? 12 A Yes, I do. 13 Q And part of the testimony went into the 14 level of that insurance and the risks that were to be 15 insured against. 16 A That's correct. 17 Q And in addition to the general liability 18 insurance coverage that you talked about in your 19 testimony, risk of personal injury to Qwest personnel 20 or third parties, what other types of insurance does 21 Qwest expect its interconnection customers to obtain? 22 A In our -- 23 MR. OPPEDAHL: Objection. Beyond the 24 scope of cross. 25 A.L.J. KIRKPATRICK: Mr. Tymkovich. 162 1 MR. TYMKOVICH: I think he covered the 2 insurance requirement, and in great detail. 3 A.L.J. KIRKPATRICK: He talked about the 4 liability portion of it. I will sustain. 5 MR. TYMKOVICH: Thank you. 6 BY MR. TYMKOVICH: 7 Q Let me ask it a little different way, 8 Mr. Easton. What is the reason that Qwest has the 9 insurance requirement that's contained in an 10 interconnection agreement? 11 A Well, the insurance requirement is 12 designed to protect the interconnecting party and Qwest 13 from claims for property damage, personal injury, or 14 even death, arising from interconnecting with and using 15 Qwest equipment. 16 Q And does Qwest require all of its 17 interconnection customers to obtain some type of 18 insurance such as this at some level? 19 A Yes, we do. 20 Q And what is the reason for Qwest's 21 business judgment to make this requirement in its 22 written contract with an interconnection customer? 23 MR. OPPEDAHL: Two objections. One, 24 leading, and, second, beyond not only the scope of 25 cross but the scope of his original direct. 163 1 MR. TYMKOVICH: I think what I asked, 2 what the purpose of the -- what is the basis for 3 Qwest's business judgment in this regard. And what was 4 the second objection? 5 MR. OPPEDAHL: Same two objections. 6 First, leading, and the second, that it's beyond not 7 only the scope of the Co-op's cross, but well beyond 8 the scope even of his own direct in the first place. 9 A.L.J. KIRKPATRICK: What's to lead? The 10 fact that he said "business judgment"? 11 MR. OPPEDAHL: Yes. 12 A.L.J. KIRKPATRICK: Okay. Well, I 13 didn't find that offensive. As far as beyond the scope 14 of the cross, he went into reasons for insurance. I 15 thought that was the whole -- you spent quite a bit of 16 time on cross, I thought, Mr. Oppedahl, on possible 17 risks to insure against, so I will overrule. 18 BY MR. TYMKOVICH: 19 Q Go ahead and answer the question, 20 Mr. Easton. 21 A I think it's only a prudent business 22 practice to ask that the interconnectors have insurance 23 for some of the reasons I cited in my testimony and 24 during the cross examination this morning. There is a 25 risk that there could be personal injury or property 164 1 damage, and, as any prudent business, Qwest would like 2 to have some protection against that. 3 Q And what would Qwest's position be if, 4 say, even a frivolous lawsuit were filed against us 5 where it believed it had no liability, what would it do 6 in those circumstances? 7 A Even in a situation like that, regardless 8 of how frivolous the lawsuit might be, Qwest would 9 still have to incur expense to defend itself in that. 10 Q Who would you expect to be ultimately 11 responsible for those expenses incurred by Qwest? 12 A It would be Qwest, obviously. 13 Q And would you look to the insurance 14 carrier of the responsible party if Qwest were held to 15 some expenses as a result of the defense? 16 A If that party had insurance, yes. 17 Q Did Qwest -- in Qwest's consideration of 18 Ruby Ranch's position that it didn't need to purchase 19 any insurance, in other words, it was Ruby Ranch asking 20 for zero level insurance. 21 A That's correct. 22 Q And that's been its position in this 23 arbitration. 24 A Yes. 25 Q What has been Qwest's position to the 165 1 reasonableness of that position taken by Ruby Ranch? 2 A Qwest, as I have indicated in my 3 testimony, does not feel that that is appropriate. 4 Some minimal level of insurance coverage is required, 5 both to protect Ruby Ranch but also to protect Qwest. 6 Q And you also were examined by several 7 hypotheticals by Mr. Oppedahl as well as some that you 8 presented yourself about concerns that were raised by 9 the activities of the interconnection customer. Do you 10 recall that testimony? 11 A Yes. 12 Q And one of the purposes of insurance, I 13 expect, is that you hope never to have to exercise the 14 coverage; is that true? 15 A That is correct. 16 Q Now, did you testify that, in Qwest's 17 experience, there were a number of accidents relating 18 to installations by its own employees; is that correct? 19 A I think I said over 1200 incidents that 20 needed to be reported to OSHA last year. 21 Q How did you determine that information, 22 Mr. Easton? 23 A I spoke with our folks who are in charge 24 of the OSHA reporting. 25 Q Now, you also were examined about 166 1 availability of insurance by Mr. Oppedahl, and 2 mentioned in your direct testimony about your effort to 3 determine the availability of insurance. Based on your 4 investigation, what did you conclude about the 5 availability of insurance to an entity such as Ruby 6 Ranch? 7 A I concluded that it is available, and 8 concluded that you do not, in fact, need to provide a 9 whole lot of detail to the carrier. I was able to 10 describe the situation in about 30 seconds, much as I 11 did in my testimony, and they were able to decide to 12 provide a quote based on that description. And then, 13 finally, as we have discussed, I thought the price 14 $1,000 a year was not unreasonable. 15 MR. TYMKOVICH: May I approach, Your 16 Honor? 17 A.L.J. KIRKPATRICK: Yes. 18 BY MR. TYMKOVICH: 19 Q Now, Mr. Easton, Mr. Oppedahl, in his 20 examination of you, went to some lengths to talk about 21 the, as I understand it, the relative risk of POT 22 service and LAD service, what activity he is proposing 23 on behalf of Ruby Ranch. Do you recall that testimony? 24 A I do. 25 Q There was also some examination of you 167 1 about the risk that could be incurred in the routine 2 installation of inside wire by nonQwest personnel, or 3 even more complex services, correct? 4 A Yes. 5 Q Now, I have tendered to you an exhibit 6 which would be -- should be marked as Exhibit 30. 7 (Whereupon Exhibit No. 30 was marked 8 for identification.) 9 BY MR. TYMKOVICH: 10 Q Mr. Easton, do you recognize the document 11 that I handed to you? 12 A Yes, I do. 13 Q And what is that document? 14 A That is a book called The Telephone Book, 15 written by Carl Oppedahl. 16 Q Did you obtain these -- did you create 17 this document? 18 A I did not create it, but it's part of my 19 preparation for this docket. I did check this book out 20 of the library. 21 Q And are these excerpts from the book that 22 you checked out from your public library? 23 A Yes, they are. 24 Q What is the book -- what's the book 25 about? 168 1 A The book is about installing your own 2 telephone equipment. 3 Q Okay. And the author is who? 4 A Is Mr. Oppedahl. 5 Q Now, if you turn to page 7 of the 6 exhibit. At the top there's a provision that's noted, 7 "Disclaimer." 8 A Yes. 9 Q And in the second sentence to that, 10 Mr. Oppedahl wrote, "My publisher and I disclaim all 11 liability for any and all harm, paren, economic losses, 12 personnel injury, loss of telephone service, et cetera, 13 close paren, that might be claimed to flow from this 14 book. Let me give you a few examples." Do you see 15 that? 16 A I do. 17 Q And then, in the next example, he says -- 18 Mr. Oppedahl writes, "If you fall off a ladder or hit 19 your thumb with a hammer or knock over a Ming vase 20 while doing something described in this book, don't 21 expect the publisher or myself to pay for it." Do you 22 see that? 23 A I do. 24 MR. OPPEDAHL: I am sorry. Is this going 25 somewhere? 169 1 A.L.J. KIRKPATRICK: Got an objection, 2 Mr. Oppedahl? 3 MR. OPPEDAHL: I would like to know if he 4 is simply using the artifice of asking the witness to 5 use this sentence as a way of somehow reading into the 6 record sections from the book. 7 MR. TYMKOVICH: I have one more section 8 that I want to refer to the witness, then I will ask 9 him a question about it. 10 A.L.J. KIRKPATRICK: Well, why don't you 11 give me a little preview of where we are going. 12 THE WITNESS: Well, I think Mr. Oppedahl, 13 through his testimony and cross examination, has 14 suggested that telephone installation is essentially 15 risk-free, and I think this exhibit shows that 16 Mr. Oppedahl himself recognizes the risk of installing 17 telecommunications equipment and the need for some type 18 of liability protection. 19 A.L.J. KIRKPATRICK: In that case, 20 wouldn't it have more properly been an exhibit on cross 21 examination? 22 MR. TYMKOVICH: Well, it was raised by 23 his cross examination of Mr. Easton. 24 A.L.J. KIRKPATRICK: I think it's within 25 the scope of the cross examination regarding 170 1 Mr. Oppedahl's view of the relative risk of POTS versus 2 LADS versus the wholesale services we're talking about 3 here. But are you bringing it out because it's 4 Mr. Oppedahl who wrote this, or because it's some 5 expert in the field who says that there's -- I guess I 6 don't -- I am not quite sure I understand the premise 7 of this. Run it by me again -- 8 MR. TYMKOVICH: I am bringing it up 9 because Mr. Oppedahl has prepared testimony and has 10 represented that he is going to be installing equipment 11 at the Ruby Ranch neighborhood as a volunteer or 12 employee of Ruby Ranch. He has also stated in his 13 testimony that he thinks it's so risk-free that there's 14 no need for insurance, and that the commission in this 15 docket ought to award or enforce an arbitration 16 provision that requires no insurance. 17 I think it's relevant to the credibility 18 of those claims to take a look at what Mr. Oppedahl has 19 written himself, in other contexts, about the relative 20 risk of installing telecommunications equipment and the 21 fact that in the book, he disclaimed liability for the 22 person reading the book, let alone installing 23 telecommunications equipment. 24 A.L.J. KIRKPATRICK: Okay. I think 25 that's a topic for cross examination. We're not on -- 171 1 you waived your cross examination. 2 MR. TYMKOVICH: I did, but he raised in 3 his redirect of Mr. Easton the relative lack of risk, 4 and I think I am entitled, in redirect -- 5 A.L.J. KIRKPATRICK: Now, don't bring in 6 a whole slew of exhibits because something comes up on 7 cross you didn't want to hear. That's not my 8 understanding of how redirect works. Let's, unless you 9 have some other purpose for this, I am going to ask you 10 to move onto something else. 11 MR. TYMKOVICH: Okay. I will finish up, 12 then. 13 BY MR. TYMKOVICH: 14 Q In summary, Mr. Easton, how would you 15 characterize the relative risk that Qwest faces in 16 entering into an interconnection agreement with Ruby 17 Ranch and the Co-op members? 18 A Well, I do believe that there's less risk 19 with regard to Ruby Ranch than with someone who would 20 be collocating in Qwest's Central Office. I believe -- 21 I do believe there is, in fact, some risk, and it's 22 only prudent business that Qwest would ask to be 23 insured against that. 24 MR. TYMKOVICH: Thank you. 25 MR. OPPEDAHL: Four questions, Your 172 1 Honor. 2 A.L.J. KIRKPATRICK: On what? As I 3 indicated to you, I don't normally allow examination 4 beyond redirect, unless new material is raised. 5 MR. OPPEDAHL: We learned for the first 6 time that the witness says he gave -- he only needs to 7 give a very brief description to the broker to get a 8 quote. I personally have been through the experience 9 with brokers and couldn't imagine how it could be. I 10 wanted to ask what description he gave to the broker. 11 A.L.J. KIRKPATRICK: No. Anything else? 12 MR. OPPEDAHL: I will withdraw the other 13 questions. 14 A.L.J. KIRKPATRICK: Okay. I am 15 ruling -- again, you have had the full opportunity to 16 ask him about it on cross. The fact that it was a 17 brief description doesn't rise to the level of new 18 material. It's just redirect explaining his answer. 19 MR. OPPEDAHL: Yes, Your Honor. 20 A.L.J. KIRKPATRICK: Thank you, 21 Mr. Easton. 22 MR. TYMKOVICH: Your Honor, Qwest would 23 now call Mr. Robert J. Hubbard. 24 (Whereupon Exhibit No. 29 was marked 25 for identification.) 173 1 (Whereupon Robert J. Hubbard was sworn.) 2 A.L.J. KIRKPATRICK: Mr. Hubbard, why 3 don't you state and spell your name for the record. 4 THE WITNESS: My name is Robert J. 5 Hubbard, spelled H-u-b-b-a-r-d. 6 A.L.J. KIRKPATRICK: Okay. Mr. 7 Tymkovich. 8 DIRECT EXAMINATION 9 BY MR. TYMKOVICH: 10 Q Good afternoon, Mr. Hubbard. Did you 11 prepare the rebuttal testimony that's been tendered to 12 you as Exhibit 29 in preparation for your -- for the 13 docket today? 14 A Yes, I did. 15 Q And are there any exhibits that were 16 attached to your testimony? 17 A No, there was not. 18 Q Mr. Hubbard, do you wish to make any 19 changes or modifications to the testimony at this time? 20 A No, I do not. 21 MR. TYMKOVICH: Your Honor, I move the 22 admission of Exhibit 29. 23 A.L.J. KIRKPATRICK: Any objection? 24 MR. OPPEDAHL: Yes. Objection to the two 25 places that state the conclusion that the Co-op had 174 1 unauthorized access to the cross box. It's page 7, 2 line 18, and page 6, lines 14 through 16. I would, if 3 those were stricken, I would withdraw the objection to 4 the remainder of the testimony. 5 A.L.J. KIRKPATRICK: Well, there's no 6 basis in the record for the necessity for striking that 7 at this point, is there? 8 MR. OPPEDAHL: You are probably right. I 9 guess it should wait until after cross. 10 A.L.J. KIRKPATRICK: So you can cross him 11 on that. 12 MR. OPPEDAHL: Okay. Then I would 13 request that the decision about taking it into the 14 record be deferred until cross is completed. 15 A.L.J. KIRKPATRICK: Well, I will admit 16 it, subject to being stricken. How is that? 17 MR. OPPEDAHL: Yes, Your Honor. 18 A.L.J. KIRKPATRICK: It's admitted but I 19 will consider those two specific points when we get to 20 them. 21 MR. OPPEDAHL: My witness, Mr. Tymkovich? 22 MR. TYMKOVICH: Your witness, sir. 23 MR. OPPEDAHL: Thank you. 24 CROSS EXAMINATION 25 BY MR. OPPEDAHL: 175 1 Q So, Mr. Hubbard, you read my book? 2 A No, I have not. 3 Q Oh. You just picked out the pages and 4 you read part of it? Somebody else picked them? How 5 did it happen? 6 A I have not looked at your book. 7 Q Oh, I am sorry. That was Mr. Easton. I 8 apologize. Okay. So, you have not read my book? 9 A No, I have not. 10 Q Are you a lawyer, Mr. Hubbard? 11 A No, I am not. 12 MR. OPPEDAHL: I would like to request 13 that we go into a confidential section. It will be on 14 the same subject matter that we went -- that we tried 15 to go into before. This would, again, call for 16 Mr. Bork to leave the room. 17 A.L.J. KIRKPATRICK: Okay. Anyone who 18 has not signed the nondisclosure agreement is not 19 eligible to -- 20 MR. OPPEDAHL: We have no objection to 21 PUC staff remaining, if that would be helpful. 22 A.L.J. KIRKPATRICK: Okay. This portion 23 is confidential. 24 (Whereupon the following proceedings 25 were excerpted and are under separate cover in 176 1 the File Room of the Commission.) 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 [confidential portion of three pages] 181 1 Q The field connection point that the Co-op 2 would need to be able to connect to distribution 3 subloops within the Ruby Ranch neighborhood would be a 4 field connection point that doesn't connect to any F1s, 5 right? It only connects to F2s? 6 MR. TYMKOVICH: Your Honor, I guess I 7 would object. The issue is the quote preparation fee, 8 and there's been no testimony by Mr. Hubbard about the 9 actual job, because the job hasn't been designed or 10 prepared yet. So, I would object. I think it's beyond 11 the scope or it's speculative at this point. 12 MR. OPPEDAHL: If I may, Your Honor. 13 It's not speculative in the slightest. The witness 14 testified that eight hours is -- the first thing he 15 said was that it was F1 planning. And people who rent 16 F2s don't need any F1s, and there's no F1 planning 17 required. But I can't testify to that. I am not the 18 witness on the stand. 19 Now, I would like this witness to explain 20 how in the world F1 planning is needed for an FCP that 21 doesn't connect to F1s. 22 A.L.J. KIRKPATRICK: I think he can 23 respond. If not, I think -- if he knows. You might 24 have to lay a little more foundation here. I mean, is 25 he familiar with your area and the aspects of it. 182 1 BY MR. OPPEDAHL: 2 Q Do you know what F1s and F2s are? 3 A Yes, I do. 4 Q The cross-connect box in Ruby Ranch 5 is the cross-connect point between F1s and between F2s? 6 A That's correct. 7 Q The F1s go down to the remote terminal on 8 Badger Road in Willowbrook? 9 A Yes. 10 Q The F2s go from the cross-connect box up 11 into the neighborhood until it reaches the end of the 12 various roads? 13 A I will clarify that by saying it goes to 14 most of the homes in the neighborhood. 15 Q Okay. But the F2s don't go towards the 16 remote terminal, they go towards homes in the 17 neighborhood? 18 A To most of the homes in the neighborhood, 19 yes. 20 Q The exception being what? The home on 21 Diamond Road? 22 A That is correct. That is fed by straight 23 F1s, counsel. 24 Q That's right. The field connection 25 points that the Co-op would need would be treating the 183 1 cross-connect box more or less as a wire center, right, 2 for purposes of F2 subloops? 3 A As a wire center? You mean -- I guess I 4 have to ask you to clarify that. As a wire center? 5 Central Office? You used the same -- 6 Q Let me try rephrasing. We have in mind 7 putting our DSLAM somewhere nearby to that 8 cross-connect box. You are aware of that? 9 A Yes, I am. 10 Q We would have to have some way to connect 11 copper pairs from our DSLAM to F2s in that 12 cross-connect box, right? 13 A That's correct. 14 Q And from Qwest's point of view, the point 15 of demarcation between our wires and that cross-connect 16 box would be field connection points, right? 17 A A field connection point at the cross 18 box, yes. 19 Q Well, you say that it could be at or 20 somewhere nearby. It wouldn't have to be literally 21 bolted to the cross box, right? I am questioning your 22 use of the word "at." What do you mean when you said 23 "at." 24 A The field connection point, in this 25 instance, would be basically within the cross box 184 1 itself. 2 Q Okay. Let's pursue that a little bit. 3 Right now, in that cross box, there are terminal blocks 4 of 100 pairs each, right? 5 A That's right; that's true. 6 Q Six blocks of 100 pairs each? 7 A That is true. 8 Q Two of them are marked as F1, two of 9 those blocks are marked as F1 blocks, right? 10 A Yes. 11 Q The other four are marked as F2s? 12 A That's correct. 13 Q By and large, almost every cross-connect 14 that's in that box is from an F2 pair to an F1 pair; is 15 that right? 16 A Yes. 17 Q The field connection point that you have 18 just described, it would be what? Another -- at least 19 one more block of screw terminals in that cross-connect 20 box? 21 A That is correct. 22 Q Or at least that would make up part of 23 the field connection point? 24 A Yes. 25 Q You have in mind, for example, if we 185 1 wanted to run 100 pairs from our DSLAM towards the 2 Qwest wiring, that 100 pair cable would then somehow be 3 eventually connected to a block of 100 pair -- 100 4 pairs of screw terminals? 5 A That's my assumption on this. 6 A.L.J. KIRKPATRICK: Let me stop you 7 right here. Is this still confidential? 8 MR. OPPEDAHL: My apologies. I am very, 9 very sorry. In my notes from Mr. Easton, I had it 10 marked, and in my notes from Mr. Hubbard, I failed to. 11 I very much apologize. 12 A.L.J. KIRKPATRICK: When did the 13 confidential end? Right after you said "seven hours," 14 which was the time? 15 MR. OPPEDAHL: Your Honor, the last time 16 I mentioned any number of hours, that would have been 17 the end of it. And I am very sorry, Your Honor. 18 A.L.J. KIRKPATRICK: That's okay. It 19 happens all of the time. You can tell those people to 20 come in if they want. We'll make the appropriate 21 notations, but if the reporter, if you can look back to 22 where seven hours -- I think everything after that is 23 nonconfidential. 24 I am sorry. I interrupted you, probably, 25 in mid-thought. Do you remember where you were, 186 1 Mr. Oppedahl? 2 MR. OPPEDAHL: Yes. 3 BY MR. OPPEDAHL: 4 Q The work that I have been asking you 5 about in the last few minutes, work involving setting 6 up a field connection point, making connections to 7 cables, in the most general terms, that could be put in 8 the category of outside plant work; is that right? 9 A Yes. 10 Q You yourself have done outside plant work 11 in your career in -- with telephone companies, right? 12 A Yes, I have. 13 Q You're aware -- have you been to the Ruby 14 Ranch neighborhood? 15 A Yes, I have. 16 Q When was that? 17 A Monday. 18 Q That's when I got the phone call asking 19 for the gate code? 20 A From the technician, yes. 21 Q Steve Crandall, right? 22 A I got his name somewhere here. 23 Q Number 9675. Ring a bell? 24 A I think that was it. 25 Q So you saw the cross-connect box that we 187 1 have been talking about? 2 A Yes. 3 Q You saw the barn that we've -- I have 4 been talking about? 5 A Yes, I did. 6 Q You saw that the two of them are, roughly 7 speaking, maybe 300 feet apart? 8 A Yeah. 300, 400, somewhere in there. 9 Depends on the route you would take to bury. 10 Q Yes. You personally saw that there are 11 places where two more blocks of screw terminals could 12 be put in? 13 A On the lower quarter, I guess, of the 14 box, yes. 15 Q That's right. Lower left and lower right 16 side. One place on the left and one place on the right 17 where an additional block could be. 18 A Absolutely. 19 Q As you have been envisioning the field 20 connection points that would be built to allow the 21 Co-op to have access to subloops, have you been 22 envisioning that there would be a protector at the 23 point of demarcation between the Co-op facilities and 24 Qwest facilities? 25 MR. TYMKOVICH: Your Honor, I would 188 1 object. Again, Mr. Hubbard's testimony had to do with 2 the quote preparation fee and did not have to do with a 3 potential tactical design by Qwest after Ruby Ranch's 4 entered into an interconnection agreement. So I would 5 object as beyond the scope of the testimony. I don't 6 think it's appropriate for cross examination to go into 7 an issue that has to do with what Qwest might do when 8 it designs the job, if and when it ever gets to that 9 point. So, it would also be irrelevant, I guess, on 10 that basis. 11 MR. OPPEDAHL: If I may, Your Honor. I 12 would have preferred not to signal to the witness where 13 I was going. But page 5, lines 9 through 13, include 14 the witness's statement about metallic connections 15 between all equipment, and I want to probe that with 16 the witness. And the questions I am asking now are 17 directly intended to assist in learning more from the 18 witness about this metallic connection, which I can 19 only do by asking what connection he thought was going 20 to be built. 21 A.L.J. KIRKPATRICK: It seems to me it's 22 within the scope of the testimony on page 5, so, 23 overruled. 24 BY MR. OPPEDAHL: 25 Q In the connection that you envisioned, 189 1 was there to be a protector between the Co-op 2 facilities in the barn and Qwest facilities? 3 A I envisioned that there is a connection 4 probably located in the barn. I am just guessing. 5 Q Now, if the protector is in the barn, it 6 would mean that 3 or 400 feet cable would have to be 7 installed by Qwest, right? 8 A No. 9 Q You would be unwilling to do that, even 10 if the cable were self-installed by the interconnecting 11 company? 12 A There is protection required at your end. 13 Q Yes. 14 A To protect yourself and us. 15 Q Yes. 16 A At the field connection points, the cable 17 can be installed by you, with the splice at the cross 18 box or right outside of the cross box and screw type of 19 terminals within the cross box. I believe the 20 protector can be located in the barn. 21 MR. OPPEDAHL: I have a number of 22 documents, and depending on whether the witness picks 23 any one of these, I may have in mind marking it as an 24 exhibit. Depends on the answers from the witness 25 whether I would ask to have it marked as an exhibit. 190 1 2 BY MR. OPPEDAHL: 3 Q I will show you a sheet from Marconi and 4 ask if that's the kind of protector you were 5 envisioning might be installed between the Qwest 6 facilities and the Co-op facilities? 7 THE WITNESS: Sorry, Your Honor, I have 8 to take a few minutes to review these. I am not 9 familiar with this Marconi product, but I am reading. 10 BY MR. OPPEDAHL: 11 Q If I may, Mr. Hubbard, I might be able to 12 save sometime, because I may have given you a stupidly 13 chosen one first. I have given you four data sheets. 14 It might be that one of the other three is one that you 15 would more quickly recognize as what you would envision 16 using. 17 A It looks like most of them have 18 protectors on them. 19 Q Do you recognize -- 20 A I guess the option would be up to you, if 21 you are going to place it in your barn. 22 Q I am sorry. Say again? 23 A If you are placing this in your barn, the 24 option of which terminal you use, I think, would be up 25 to you. Most of them look like they have electrical 191 1 protection on them. 2 Q Is one of these, assuming that it would 3 be mounted to the exterior of the barn, is there any 4 one of these -- well, whatever kind of protector you 5 are thinking of, does it more closely match any of 6 these four than the other? 7 MR. TYMKOVICH: Your Honor, I am getting 8 a little confused. Are these protectors that are in a 9 possible installation at the barn? I am just not sure 10 why we're looking at this equipment. Is this in the 11 range of potential protectors that could be used in 12 this job, or is this one thing that is in the testimony 13 that is actually being proposed by Ruby Ranch? 14 A.L.J. KIRKPATRICK: I thought we were 15 exploring the testimony on page 5 dealing with possible 16 grounding problems. 17 MR. OPPEDAHL: That's right. That's 18 right. 19 BY MR. OPPEDAHL: 20 Q Now, I could be completely wrong. And I 21 guess, in fairness to Mr. Hubbard, rather than forcing 22 him to put what he was envisioning in one of these four 23 categories, maybe I should more fairly ask you to 24 describe, in general terms, the type of protector you 25 are envisioning, which may or may not match any of 192 1 these four. 2 A You know, I am not designing your 3 network. I don't know how or where your DSLAM is going 4 to be within your barn. I would probably look -- I 5 don't know, on the terminal like this, you're inside a 6 barn. I assume it's a heated barn. There a protected 7 area where your DSLAM is going to be. You could look 8 at an inside protector. They don't even -- some of 9 them don't even come in cabinets. 10 Q Well, it's an, in general, Qwest prefers 11 to have demarcation points between Qwest's facilities 12 and the customer's facilities on the outside of the 13 buildings, whenever possible, because that helps Qwest 14 isolate problems, right? 15 A Yeah. And you're under a wrong 16 conception there, I believe. Our demarcation point is 17 going to be in the FCP at the cross box. 18 Q If it would help you in answering the 19 question, I would mention that the DSLAM is likely to 20 be 10 or 15 feet inside the barn rather than right next 21 to the outside wall, so there would be some length of 22 cable, in case that changes your answer. 23 A No, I am not designing your system. 24 That's your system to design. I don't know where it's 25 going to go in there, and I don't know why I would 193 1 change my answer on that. 2 Q So, in the installation that you are 3 envisioning, is that part of your assumptions for your 4 testimony on page 5, at lines 9 through 13, about the 5 metallic connection, metallic sheaths and so on, for 6 the installation that you were envisioning? When you 7 wrote this testimony, or spoke this testimony, am I 8 right that you were envisioning adding a screw terminal 9 block in the cross-connect box, connecting to a buried 10 cable, setting aside the question of whether Qwest 11 provides the cable or the interconnecting company, and 12 Qwest -- well, and someone installing a protector 13 probably at the barn; is that right? 14 A That's an assumption I have, yes, sir. 15 Q By the way, in the system you are 16 envisioning, does it matter whether Qwest installs the 17 protector or whether the interconnecting company 18 installs the protector? 19 A Well, our -- where we stop is at the 20 cross box. It's your facility from there to the barn. 21 It's not Qwest's facilities, to begin with. 22 Q Okay. Let's talk about the other end of 23 each subloop; that is to say, all or nearly all of the 24 subloops would come together at the field connection 25 point. The other end of each subloop is at the home of 194 1 a subscriber to the Co-op's DSL service, right? 2 A If it's connected through the drop from 3 the terminal out from their house to their customers, 4 yes. 5 Q Right. And then the end of Qwest's 6 facilities for that end of the subloop would be at the 7 Network Interface Device at somebody's house? 8 A Yes, at the NID. 9 Q Okay. This is an example of a NID, 10 right? 11 A That is an example of a NID. 12 Q Okay. 13 A.L.J. KIRKPATRICK: When you say, 14 "this," I believe you have a picture of it in one of 15 your exhibits. 16 MR. OPPEDAHL: Yes. Why don't I pick an 17 exhibit, one of the CO exhibits. 18 A.L.J. KIRKPATRICK: Exhibit 9, I think. 19 BY MR. OPPEDAHL: 20 Q Okay. I am showing the witness a Hearing 21 Exhibit 9. That's an example of a NID, right? 22 A Yes. 23 Q Okay. I am showing the witness Hearing 24 Exhibit 7. Do you recognize that as the cross box that 25 you saw on Monday? 195 1 A Yes. Few more leaves on the trees than 2 when I looked at it, and no snow. 3 Q That's right. For the record, this 4 picture was taken when these negotiations began. Okay. 5 The kind of NID that you saw in the exhibit just now, 6 that would be mounted -- that NID would be mounted 7 normally to the outside of somebody's house, right? 8 A Correct. 9 Q And that NID has wires coming in from two 10 directions, one direction is a buried cable from 11 somewhere out in the street, right? 12 A A buried drop, yes, usually. 13 Q And that's a gel-filled sheath cable? 14 A It's gel-filled, usually 3- to 6-pair 15 cable, if you will. It runs from the main distribution 16 cable into the house. 17 Q Right. Typically there would be a 18 pedestal somewhere around the end of the driveway that 19 would provide a splicing point between the F2 and the 20 drop? 21 A Yeah. As I stated earlier, usually out 22 in the front of the house. 23 Q Yes. And I mentioned wires coming into 24 the NID from one direction that we just talked about, 25 the drop. Wires coming from the other direction would 196 1 be from inside wiring from the person's house, right? 2 A Correct. 3 Q And within the NID, there will be some 4 kind of protector, right? 5 A Correct. 6 Q In the old days, it would be a carbon gap 7 protector? 8 A Absolutely. 9 Q When you started, it was all carbon gap? 10 There wasn't gas discharge? 11 A That's not completely true. There was 12 some gas discharge. 13 Q Nowadays it's almost always, new 14 installation, it's almost always gas discharge tubes? 15 A There's still carbon. 16 Q I am prepared to let this be marked as an 17 exhibit. I will leave it here. This is an example of 18 a five-pin gas discharge protector, right? 19 A Yes. I believe it's got carbons in it. 20 MR. OPPEDAHL: Okay. The reporter could 21 mark this as the next exhibit in order. 22 A.L.J. KIRKPATRICK: Thirty-one. 23 MR. OPPEDAHL: Exhibit 31. Just a 24 minute. 25 (Whereupon Exhibit No. 31 was marked 197 1 for identification.) 2 A.L.J. KIRKPATRICK: Do you want to offer 3 that? 4 MR. OPPEDAHL: Yes, sir. 5 A.L.J. KIRKPATRICK: Then, objection to 6 the protector? 7 MR. TYMKOVICH: Your Honor, I, again, I 8 didn't follow the foundation that was laid for the 9 relevancy of it to the proceedings, and, in particular, 10 there was no explanation as to where in this 11 hypothetical system it would be installed. So, I don't 12 think a foundation has been laid yet for its admission. 13 MR. OPPEDAHL: That's probably correct, 14 Your Honor. I think I should just do another question 15 or two and then -- 16 A.L.J. KIRKPATRICK: Okay. Let's hear a 17 little more. 18 BY MR. OPPEDAHL: 19 Q The multi-line protector that would be 20 somewhere between the -- that would be somewhere in the 21 electrical connection between the cross-connect and 22 DSLAM, that multi-line protector could well contain 50 23 or 100 of these gas discharge protectors, right? 24 A That is true. 25 Q And this is an example of the very kind 198 1 of protector that might be between the DSLAM and the 2 field connection point, right? 3 A Might be, yes. 4 Q Okay. Back to the -- 5 A.L.J. KIRKPATRICK: All right. Are you 6 moving it in on that basis? 7 MR. OPPEDAHL: Yes, sir, please. 8 A.L.J. KIRKPATRICK: Any objection? 9 MR. TYMKOVICH: No objection. 10 A.L.J. KIRKPATRICK: It's admitted. 11 Let's get a little more focussed. Time is going. 12 Sometimes the historical asides are perhaps more 13 interesting to you. 14 MR. OPPEDAHL: Probably only of interest 15 to me, and only of slight interest to the witness and 16 zero interest to anyone else. 17 A.L.J. KIRKPATRICK: Try and get 18 focussed. 19 BY MR. OPPEDAHL: 20 Q Back to the NID. That would be 21 somebody's house wires coming from one way, are from 22 the inside wire; wiring coming from the other way are 23 from the drop, right? 24 A That's true. 25 Q They get connected to each other by means 199 1 of screw terminals and so on within the NID, right? 2 A That's true. 3 Q Those two wires coming in from the one 4 side and the other side, they don't both have metal 5 sheath. The metal sheath is on the drop line. There's 6 no metal sheath coming in on the inside wire usually? 7 A Usually on inside wire, there's not. 8 Q Especially not in residence homes. 9 A.L.J. KIRKPATRICK: Let him answer. You 10 say usually not. Did you finish? 11 THE WITNESS: Usually not on inside 12 wiring within homes. In buildings or -- that could be 13 different. 14 A.L.J. KIRKPATRICK: Okay. 15 BY MR. OPPEDAHL: 16 Q So, in the NID, there is a cable clamp 17 for clamping on to the metal sheath of the drop wire, 18 right? 19 A Correct. To go to ground. 20 Q Yes. To go to ground. But the inside 21 wire coming from inside the house to the NID doesn't 22 have a metal sheath, and so there isn't a metal sheath 23 to bond to the metal sheath of the drop, right? 24 A Would you repeat that? 25 Q Let me back up. Turning to your 200 1 testimony on page 5, lines 9 through 13, you talk about 2 a metallic connection between all equipment, and that 3 is through the cable sheath in the common grounding of 4 all equipment. Do you see that testimony? 5 A Yes. 6 Q And the sheath you are talking about 7 there is the sheath that's on buried cable used 8 outdoors, right? 9 A Yes, sir. And it's bonded to ground and 10 so is the equipment. 11 Q But inside wire, in residential homes 12 especially, doesn't have a sheath, so it doesn't get to 13 be bonded to the sheath of the drop wire, right? 14 A I would say that's true of the metallic 15 connection through the pairs themselves, even though 16 there's a carbon protector in between. 17 Q Well, in fact, the carbon protector just 18 provides a gap between each of those -- each of the 19 conductors of the pair and the ground. It is not 20 between the inside wire and outside wire, is it? 21 A Basically, the circuit goes, if you will, 22 through that protection. 23 Q Well, but, in particular, in particular, 24 between, say, the tip wire of the inside wire and tip 25 wire from the drop, those two tips have a metallic 201 1 connection without a gap separating them, right? 2 There's no carbon gap separating, say, the two tip 3 wires of a pair, right? 4 A You will have to start again. I am 5 sorry. 6 Q Okay. Let's say a pair coming in off the 7 street one way to -- one way -- the kind of terminology 8 to describe the two wires of the pair is that one is 9 called the "tip" and the other is called the "ring." 10 A That's correct. 11 Q Same thing from the two inside the house. 12 One might be called tip, one might be called ring? 13 A That's true. 14 Q One of the goals of the person doing the 15 work at the NID is to get tip connected to tip and ring 16 connected to the ring? 17 A Absolutely. 18 Q The carbon gap is not a gap between, say, 19 two tip wires, is it? 20 A I have -- I do not believe it is, both 21 ring and tip. 22 Q Isn't it really true that it's a gap 23 between the tip wires and ground and another gap 24 between the ring wires and ground? 25 A When we -- when we want the surge to be 202 1 dealt with. The surge is a surge between, say, the tip 2 wires and ground, or surge between the ring wires and 3 ground, right. 4 MR. TYMKOVICH: I object. There's 5 multiple questions pending. 6 MR. OPPEDAHL: I guess I better make sure 7 I don't have compound questions. 8 BY MR. OPPEDAHL: 9 Q In a traditional carbon gap protector, 10 the gap in the carbon gap protector is a gap that is 11 intended to provide an opportunity for a discharge of 12 electrical energy if it's above a certain voltage, 13 right? 14 A Yes, to go to ground, yes. 15 Q Okay. 16 A Tip or ring, yes. 17 Q Tip to ground or ring to ground? 18 A Yes. 19 Q That's why we have two carbon gaps 20 protecting a single line? 21 A Yes. 22 Q And it's, in the case of this five-pin 23 gas discharge device, there's one gas discharge device 24 allowing the tip to dissipate to ground and the other 25 one allowing the ring to dissipate to ground, right? 203 1 A Yes. 2 Q It's not that the gap separates the two 3 tip conductors from each other? That's not what 4 happens, right? 5 A No. 6 Q They are metallically connected? 7 A Yes. 8 Q Same is true of the ring conductors? 9 A Yes. 10 Q Okay. In the case of customer-provided 11 equipment in a customer's house, that customer-provided 12 equipment does not get a metallic connection to Qwest's 13 equipment if it is through the cable sheath, does it? 14 A Not at that point, no. 15 A.L.J. KIRKPATRICK: I am sorry. I 16 didn't follow the question. Could you give it to me 17 again, Mr. Oppedahl? 18 MR. OPPEDAHL: Yes, Your Honor. 19 BY MR. OPPEDAHL: 20 Q Most houses with POTS telephone service 21 in them have customer-provided equipment, right? 22 A Correct. 23 Q If the customer-provided equipment is 24 metallically connected to Qwest's equipment, it would 25 be through the tip and ring conductors and not through 204 1 cable sheaths, right? 2 A At that point, yes. 3 Q Is there some other point at which they 4 were connected? 5 A No. I was just agreeing, at that point. 6 Q Yes. Now I suppose, in some remote way, 7 we could say, as well, some CPE happens to have, say, a 8 three-prong plug. The third prong somehow goes to 9 ground somewhere in the house, and everything that 10 touches the earth is somehow, in some grand way, 11 connected to each other, but that's not the section 12 we're talking about here on page 5, was it? 13 A And I believe I was talking about the 14 field connection points in your equipment not at the 15 house. 16 Q Yes. 17 A We can go down that road too. 18 Q Yes. Now I would like to turn to the 19 field connection points. Within the field connection 20 points, once again, to make sure that I am clear on 21 what's nearby, the reason for the field connection 22 points is so the DSLAM can connect to the ends of the 23 subloops that are the other end from where the 24 residences are, right? 25 A Yeah. 205 1 Q Okay. And if there is any metal -- 2 assuming, for the sake of discussion, that the DSLAM 3 has inside wire connecting it to the protector, and 4 that the inside wire doesn't have a cable sheath, then 5 the DSLAM, if it had any electrical connection to 6 Qwest's facilities, that it would only be through the 7 tip and ring conductors, right, not through a sheath? 8 A No. You got a -- your equipment has to 9 be grounded to a common ground within the location. So 10 does the protector or metal sheath cable, has to be 11 grounded usually to the same type of ground at the same 12 location. So you do have a connection between your 13 equipment and Qwest's or the cable -- metallic sheath 14 of the cable through common grounding within your area 15 that you placed your DSLAM. 16 Q Let's take it step by step, take what you 17 just said and break it up into steps. The material of 18 metallic sheath you are talking about is the metallic 19 sheath of the buried cable between the cross box and 20 protector, right? 21 A Yes. 22 Q That metallic sheath has to have a clamp 23 on it which goes to a wire, which goes to a ground rod 24 somewhere close by to the protector, right? 25 A Yes. 206 1 Q Okay. In addition, if the Co-op wants to 2 comply with the manufacturer's requirements for 3 grounding the DSLAM, the Co-op needs to ground the 4 DSLAM, right? 5 A Absolutely. 6 Q And it's your view that the DSLAM must be 7 grounded to the same ground rod as the protector? 8 A It's going to a common ground, whether 9 it's the ground itself or a common ground within the 10 area that you have located, or a cold water pipe. I 11 would say, my experience, they're usually grounded to 12 the same common ground. 13 Q But, it's also a principle of good 14 grounding to make sure that your ground wire isn't any 15 longer than it has to be. You want to ground as 16 physically nearby to the thing being grounded as you 17 can, right? 18 A Correct. 19 Q And, in this case, if the DSLAM is going 20 to be quite some distance away from the wall of the 21 barn, towards the middle of the barn, prudent practice 22 might well call for putting the ground rod at the 23 DSLAM, maybe right next to the DSLAM in the middle of 24 the barn, right? 25 A For the DSLAM itself? 207 1 Q Yes. 2 A Yeah. 3 Q Can you explain again how it would be 4 that the DSLAM would have metallic contact with Qwest's 5 equipment, other than through the tip and ring 6 conductors? 7 A Sure. You have got a cable in your 8 network -- and I am not designing your network. I am 9 envisioning this. 10 Q Yes. 11 A Okay. You have no reason to place a 12 terminal outside of that barn. I would run, if I was 13 you, I would run a cable inside the barn as close to 14 the DSLAM as possible, place a protector and a 15 cross-connect field at that point, probably using the 16 same ground rod that you would the DSLAM. That would 17 be my design, if I was going to do it. 18 Q I understand. I understand. If there 19 was some other reason, though, to keep the protector on 20 the outside of the barn, perhaps to help with 21 troubleshooting, without having to go into the barn or 22 something, trouble isolation, there wouldn't be 23 anything imprudent about the practice to have the DSLAM 24 be some distance away from the protector, and perhaps 25 to have them grounded by separate ground rods, right? 208 1 A Well, take the first part of your 2 question there. On repair and maintenance, the repair 3 and maintenance would be done at the cross box to prove 4 which way the trouble is, whether in your network or 5 our network. That is your interconnect totally, from 6 the cross box back to the barn itself. 7 Q That's for the relationship between Qwest 8 and the interconnecting company? 9 A Right. 10 Q Okay. But in terms of the Co-op wanting 11 to do its own trouble isolation as between the buried 12 cable and whatever inside cable there is, it might well 13 be prudent for the Co-op to be able to isolate at the 14 place where the buried cable meets the inside cable, 15 right, say to troubleshoot, wondering whether a bad 16 pair is in the inside wire or the buried cable? 17 A Yeah, I guess. I mean -- and from what I 18 have seen out there, bringing that buried cable right 19 in to -- close to wherever the DSLAM is going to be 20 placed. It's just a barn, as you said. 21 Q Well, the other problem, in our case, is 22 that the cable that we think somebody is going to 23 donate to us is just barely long enough to get to the 24 outside of the barn and won't get into the inside of 25 the barn. Never mind. 209 1 Having forced everyone to listen to this, 2 there's one more exhibit to mark. I think I would 3 offer the -- for the reporter, I request it will be 4 given the next number in order. 5 (Whereupon Exhibit No. 32 was marked 6 for identification.) 7 BY MR. OPPEDAHL: 8 Q I am handing the witness what has been 9 marked as Hearing Exhibit 32. That's an example of a 10 6-pair type of cable that might be used for a buried 11 drop; is that right? 12 A That is an example of a buried drop, yes, 13 it is. 14 Q And I will point to an area that's sort 15 of bluish and metallic-looking. That's the metal 16 sheath you are referring to; is that right? 17 A Yes. 18 Q And then, as we proceed inwards, to the 19 middle of the cable, there's sort of a translucent 20 plastic sheath inside the metal sheath, right? 21 A In this, yes. 22 Q In this particular cable, inside that are 23 the actual pairs themselves, right? 24 A Yes, they are. 25 Q And the outside is a black plastic jacket 210 1 that provides abrasion resistence and metallic 2 protection to the cable? 3 A Yes. 4 Q Is there some UV protection in that 5 jacket? 6 A I don't know. 7 Q Don't get a lot of UV underground, I 8 guess. 9 A I guess not. 10 MR. OPPEDAHL: For the record, I am 11 crossing off topics as quickly as I can. 12 BY MR. OPPEDAHL: 13 Q In turning back to those four -- turning 14 back to the four Marconi sheets. Is there anything 15 about the choice of one of these protectors versus 16 another that would particularly change the answers you 17 have given to questions so far today? 18 A I don't know that. I would have to 19 review these completely. I don't know. 20 Q I don't want to make you do that. I will 21 withdraw the document. For routine installations of 22 new subloops for the Co-op, will it -- let's back up. 23 You refer to joint meet in your testimony. 24 A Under repair and maintenance I believe. 25 Q Okay. Those would, for installation of 211 1 new subloops for the Co-op, you wouldn't expect joint 2 meet to be needed, would you? 3 A No. Qwest would run those 4 cross-connects. 5 Q You are not aware of any -- withdrawn. 6 Are you aware that Qwest identified an ANSI standard 7 T1.417-2001 in connection with risks that the Co-op's 8 activities would present to Qwest? 9 A I believe they introduced that as it 10 relates to -- I think T1.417 relates to spectral 11 management classes. 12 Q Yeah. That's right. Are you aware of 13 anything in this standard that particularly indicates 14 the Co-op would present a risk to Qwest's network? 15 A T1.417 identifies the spectral classes, 16 as it relates to SDSL and T1 facilities, among all of 17 the other services, including voice. The only -- or 18 one of the things that I could envision is your, 19 whatever service you're going to be feeding the DSLAM 20 with, could have a spectral interference with your own 21 SDSL, so it could be -- one of the problems could be 22 your own spectral interference, because I am assuming 23 you would have to come in through your microwave tower, 24 access the subloop, back feed a T1 line through our 25 cable into the barn area, and then you will be feeding 212 1 SDSL out of there. And if you are running T1 AMI, you 2 will interfere with yourself. So I do see some 3 problems there. 4 Q If we use one of our ports on the DSLAM, 5 SDSL ports on our DSLAM to the back feed, then it 6 wouldn't be a problem would it? 7 A I don't know for sure. I mean, SDSL is 8 compatible by itself, of course. 9 Q Right. So, if we use a SDSL back feed to 10 get from the microwave to the DSLAM, and use that same 11 SDSL technology to distribute to the subscribers, you 12 wouldn't expect those to interfere with each other? 13 A Like I said, I have no idea how you are 14 going to design your system. I don't know what you are 15 going to do out there. 16 Q I understand. And you wouldn't expect 17 the SDSL modulation to interfere with POT service, 18 would you? 19 A No. 20 Q Is there anything else in the ANSI 21 standard -- well, is there, other than what we are 22 talking about, is there anything in the ANSI standard 23 that you feel would represent spectrum management risk 24 as between the Co-op's activities and Qwest's network? 25 A On your -- well, I am thinking now, since 213 1 you just brought it up. The SDSL back feed, even 2 though it's compatible with itself, it's compatible 3 with itself going one way. You have a power influx at 4 both ends now going opposite of each other. I don't 5 know. I would have to look at the design of the whole 6 network out there to see if you may still interfere 7 with yourself. 8 Q It wouldn't interfere any more than just 9 two neighbors who both had SDSL? Wouldn't it, in both 10 cases, they have the SDSL modem and both cases they 11 have a DSLAM in the middle, right? 12 A Well, the problem comes in there, if you 13 are having trouble with one of your SDSL customers on 14 the subloop, then if you are not able to find that, 15 because you are interfering with yourself, usually then 16 we're out there doing testing, joint testing with you 17 and stuff, so, it may be very hard to distinguish what 18 the real problem is. 19 A.L.J. KIRKPATRICK: Okay. Are we 20 talking about interference on the Ruby Ranch Co-op 21 network or are we talking about some kind that could be 22 transmitted across onto the Qwest network? 23 THE WITNESS: SDSL is compatible, since 24 it's running on its own pairs out there, with most 25 everything that we have in that area right now. 214 1 A.L.J. KIRKPATRICK: Okay. I guess my 2 question is, I want to make sure we're talking about 3 problems that broach the point of demarcation and not 4 just problems -- and I have to apologize if I am not 5 astute enough to pick up on it, but it sounds like 6 maybe we drifted into some area where it was just 7 interference on the Co-op's network. 8 MR. OPPEDAHL: I believe one of the 9 questions that I asked put the witness in the position 10 of having to identify risk of something we might do to 11 harm ourselves. And as you correctly pointed out, 12 that's probably not really important to what we're 13 talking about today. But it's just because of the 14 question that I made the witness answer and -- 15 A.L.J. KIRKPATRICK: Let's stick to it. 16 THE WITNESS: I don't mean to do anymore 17 in that direction. 18 A.L.J. KIRKPATRICK: Okay. 19 BY MR. OPPEDAHL: 20 Q You are aware that Qwest cited Tech Pub 21 77355, the grounding tech pub, in connection with risks 22 to a Co-op-to-Qwest network, right? 23 A I believe I did, yes. 24 Q Is there anything in here above and 25 beyond what we talked about so far today that you feel 215 1 relates to risks that the Co-op could pose to the Qwest 2 network? 3 A We have kind of talked about where I saw 4 some of the risks coming in from through the grounding 5 and bonding out there. 6 Q Nothing else beyond what we talked about? 7 A I don't know. I would have to review 8 that document to tell you completely. 9 Q You have your rebuttal testimony at hand 10 there? 11 A Yes, I do. 12 Q If you could turn, please, to page 8, 13 down to about line 17. Do you have that line? 14 A Seventeen? 15 Q Yes. 16 A Yep. 17 Q Do you see the sentence that says, "Since 18 these injuries are work-related, you cannot rely on 19 general health insurance or your own homeowner's or 20 auto insurance. They have to be covered by Workmen's 21 Compensation insurance or by general liability 22 insurance carried by your employer." Do you see that 23 sentence? 24 A Yes. 25 Q Are you talking here about a Qwest 216 1 employee who would have a work-related injury or Co-op 2 employee or both? 3 A I was talking to everybody working on 4 equipment, subcontractors, Qwest employees, Co-op 5 employees. 6 Q You really mean to say that if I get 7 injured in my workplace, I can't collect on my health 8 insurance on my house, so I am exclusively limited to 9 whatever insurance my employer has? 10 A Well, if you're working for a company and 11 doing company work, within your own house, then your 12 company is -- and you get injured, your company is 13 liable, from my understanding. 14 Q Oh, yeah. I follow what you are saying 15 there. But I meant to ask a question that was a little 16 bit different. For example, on patents. I run a 17 patent law firm, and if I am at my office doing patent 18 law, or sitting at home doing patent law, in either 19 case, and somehow manage to get injured while I am 20 doing it, cut myself on the edge of a sharp patent 21 perhaps, I understand your point that I would be 22 entitled to collect from my employer's insurance. 23 But my question is, do you really mean to 24 say that that's to the exclusion of whatever other 25 health insurance I might have privately; that I can't 217 1 collect on whatever private health insurance is for 2 that risk -- for that harm? 3 A Let me answer that with an example that I 4 think might help. When I was splicer, I had a splicing 5 helper that worked for me. He left the job site, 6 travelling in a vehicle back to the garage. He was hit 7 by a car. The company covered him until they processed 8 the claim against the car insurance, and then he 9 basically had to pay back that money, and they got the 10 claim from the cost-causer. 11 So, what I am trying to say is that even 12 though you, the cost-causer, or the company that you 13 would be working for would be more liable than your 14 homeowner's, even though your homeowner's may cover it, 15 they could seek reimbursement from your business. 16 Q Is this what a lawyer would call a right 17 of subrogation? 18 A I have no idea what a lawyer would call 19 it. 20 Q Okay. There's a place in here -- oh, 21 yes. Page 9. If you could turn to page 9, line 9, 22 please. Do you have that page? 23 A Page 9 you said? 24 Q Yes. Do you see a place where you talk 25 about Ruby Ranch would bury its own cable to the Qwest 218 1 FDI. Do you see that part? 2 A Yes, I do. 3 Q When you say "FDI," what are you 4 referring to? 5 A Cross box, Feeder Distribution Interface, 6 cross box, they can all be used interchangeably. 7 Q And your concern about unintentionally 8 cutting a Qwest cable in that process, I take it, is 9 based on the fact that the cross box has F1s coming in 10 and F2s going out right at the cross box, right? 11 A That's correct. You have Qwest cable 12 facilities there. And, you know, I have seen hundreds 13 of times where contractors or people digging have cut 14 cable. They are responsible. I have done it myself 15 when out in the field. 16 Q I am looking for the place where you 17 mention a microwave tower. Oh, yes. Page 5, line 20. 18 Did you see that? 19 A Yes. 20 Q You know we don't really have a tower, 21 right? 22 A I saw a diagram that was provided -- I 23 don't know whether it was an exhibit or I got it off 24 your Website -- but it had an indication of a tower 25 close to your office, or in town -- I don't know 219 1 exactly where -- and two towers within the subdivision 2 themselves. That's why I reference a microwave tower. 3 Q You were looking at the network diagram I 4 designed and, unfortunately the system I used didn't 5 have an antenna by itself. You had to put a whole 6 tower with the graphics program. You didn't see a 7 tower, right? 8 A No, I didn't see a tower. I don't know 9 whether it's an antenna or -- on someone's roof, 10 whether it's a dish on someone's roof. You still have 11 some kind of metallic connection from there to our 12 plant, I would assume, to back feed. 13 Q If I were to tell you that the microdish 14 is on the side of the house; that it is grounded within 15 a few feet of the antenna; that there's a gas discharge 16 protector on the coax within a few feet of the antenna. 17 It's then converted to ether net, runs for 100 feet of 18 ether net. If I were then to tell you it goes through 19 an ether net hub, from there to a DSL modem, and from 20 there to the Qwest equipment, you wouldn't have any 21 evidence to the contrary, right? 22 A I guess I wouldn't have any evidence to 23 the contrary, no. 24 Q Okay. And if I were to tell you that I 25 believe that there is, in fact, no direct metallic 220 1 connection between the two extreme points I have 2 described, you wouldn't have any evidence to the 3 contrary, right? 4 MR. TYMKOVICH: Your Honor, that's way 5 beyond the scope of the direct of not only Mr. Hubbard 6 but Mr. Oppedahl as well. 7 MR. OPPEDAHL: Well, no. On this very 8 page we talk about metallic connection between all 9 equipment, and I am just attempting to explore that. 10 The witness didn't happen to see this exact 11 installation. 12 MR. TYMKOVICH: He's talking about 13 hypothetical equipment. 14 MR. OPPEDAHL: I am talking about the 15 real equipment that's really in. 16 A.L.J. KIRKPATRICK: Okay. Mr. Oppedahl, 17 I want you to address your comments to me. 18 MR. OPPEDAHL: Yes, Your Honor. 19 A.L.J. KIRKPATRICK: I think it's a fair 20 hypothetical. I am going to ask Mr. Oppedahl to give 21 just a little bit of live testimony when we're all 22 done, so we can wrap-up just what the microwave here 23 is, and all of that, because you are sort of giving 24 some information now that's not subject to cross when 25 you are at the podium. Ask it in a hypothetical 221 1 nature, then I will have you clean it up through 2 testimony, subject to cross. 3 MR. OPPEDAHL: Yes, Your Honor. 4 BY MR. OPPEDAHL: 5 Q Let's turn to page 6, line 14. Let me 6 know when you have that page. 7 A I have that page. 8 Q You see the sentence that says, "This 9 testimony confirms that Mr. Oppedahl, or someone else 10 associated with Ruby Ranch, has apparently gained 11 access to Qwest's cross-connect box without Qwest's 12 knowledge or permission." Do you see that sentence? 13 A Yes, I do. 14 Q What is the basis for your statement that 15 it was apparently without Qwest's knowledge or 16 permission? 17 A Well, I based it on a couple of different 18 things. One was the picture that was provided by you. 19 Q Yes. 20 A Of the, I think, of the cross box. And 21 also of an interrogatory that was sent in December, 22 Interrogatory Request No. 24, I believe, sent 23 12/27/2001, where you basically ask us to admit the 24 positions within the cross box, and there's only one 25 way for you to know that. That's to view the inside of 222 1 the box or get into the box. 2 Q So those two things were the basis for 3 what you said here? 4 A Basically, yes. 5 Q Did you read the prefiled direct 6 testimony of Carl Oppedahl in this case? 7 A Yes, I did. 8 Q Did you see the place in there where I 9 said that I have familiarity with these facilities, 10 including the cross-connect box, having been close at 11 hand when Qwest personnel have done much of the -- most 12 of the telephone and data installation in the 13 neighborhood? 14 A I don't remember that exactly. I mean, 15 you could show me. Subject to check, I will go along 16 with that. 17 Q You spoke with Steve Crandall on Monday? 18 A Not Steve Crandall. I was up there with 19 Gary Brookhauser. 20 Q I see. I am sorry if I said Steve 21 earlier. I didn't catch that. 22 A Okay. 23 Q I said Steve Crandall earlier. 24 A Okay. 25 Q Did Mr. Brookhauser mention that he has 223 1 more than once done work in that neighborhood, and I 2 have been nearby? 3 A No, he never mentioned that. 4 Q Okay. To your knowledge, is it possible 5 that a nonQwest person, such as myself, might well see 6 the inside of a cross box if I am standing nearby to a 7 Qwest employee doing an installation? 8 MR. TYMKOVICH: Your Honor, calls for 9 speculation. I suppose anything is possible. 10 MR. OPPEDAHL: It's not speculation. 11 It's in the record. 12 A.L.J. KIRKPATRICK: I think it's common 13 sense. You can answer. He can answer. 14 THE WITNESS: From a common sense 15 standpoint, I guess that's possible, yeah. 16 BY MR. OPPEDAHL: 17 Q Is there -- is it Qwest's practice to 18 label F1 fields and F2 fields with different colors? 19 A Usually, yes. 20 Q And F1s are usually blue? 21 A Blue -- now you got me for a second here. 22 One is blue, one is green. 23 Q Okay. One of them is blue, one of them 24 is green? 25 A I believe blue is F1. Green is F2. 224 1 Q If you saw my photograph, would that 2 assist you in knowing the colors? 3 A I think the photograph I saw of yours was 4 a black-and-white photo. 5 Q Okay. Indeed, if I were standing nearby 6 to a Qwest person who had the box open, and if I knew 7 which color was F1s and which color was F2s, might it 8 be the case then, in as little as 10 or 20 seconds, I 9 could figure out how many hundreds of F1s and how many 10 hundreds of F2s there were in the box? 11 A Mr. Oppedahl, I have no idea what you 12 could figure out. 13 Q Could a person standing nearby, in less 14 than 60 seconds, notice that there were two spare 15 positions in the box? 16 A I don't know. Probably they could see 17 that there was some spare space at the bottom of that 18 box. I don't know if they could determine that 19 100-pair screw type of terminals could fit in that 20 space. They could see there was a little bit of room 21 down there, yes. 22 Q If a person had seen other cross-connect 23 boxes of the same model, that happened to have all 24 eight positions filled with screw terminals, that 25 person might well be able to recognize two pairs in a 225 1 box that only had six blocks of terminals, right? 2 A I can't answer, Mr. Oppedahl. 3 Q Has anyone at Qwest described to you an 4 exchange of E-mails between the Co-op and Qwest on the 5 day that photograph was taken of the inside of the 6 cross box? 7 A In January? 8 Q Yes. 9 A They have shared an exchange of E-mails, 10 yes, with me. 11 Q Does the content of those E-mails affect 12 your view as expressed in this sentence on page 6? 13 A Did it -- repeat. 14 Q Did it affect your view? Did it 15 influence you one way or the other as to whether the 16 access was with Qwest's knowledge or permission or 17 without? 18 A Did it -- would you repeat? 19 Q You say here that the access was 20 apparently gained without Qwest's knowledge or 21 permission, right? 22 A Right. 23 Q Does the content of the E-mails form part 24 of that view on your part? Was that one of the things 25 you took into account in reaching the view that you 226 1 express here? 2 A The E-mails that I saw, that you were 3 going to go out and take a picture of the box. Is that 4 the E-mails? 5 Q Those are the E-mails I assume you are 6 referring to and those are the ones I am asking you 7 about. 8 A E-mails were done in January. 9 Q Yes. 10 A Also looking at the interrogatory that 11 was done in December. 12 Q Oh, I see. Do you feel that the 13 photograph was a result of gaining access without 14 Qwest's knowledge or permission? 15 A I believe the description done in 16 December, I thought, was gaining access. 17 A.L.J. KIRKPATRICK: Okay. The question 18 was the photograph. 19 THE WITNESS: In light of the E-mails, 20 you went down there and opened a box and took a picture 21 of it. 22 BY MR. OPPEDAHL: 23 Q Right. 24 A That's what I saw. 25 Q Right. 227 1 A I then later reviewed the E-mails back 2 and forth. It could maybe seem that you had permission 3 from the attorneys. I don't know. Doesn't matter. To 4 gain access to a Qwest premise like that in the cross 5 box, you are still supposed to have a joint meet with a 6 technician out there. You were in the cross box. You 7 could have caused problems. 8 Q I understand. Now you, of course, know 9 that a joint meet would be called for. Do you expect 10 that every member of the public would know that joint 11 meet is needed? 12 A Well -- 13 Q Anyone who authored the book about 14 telephones would know? 15 A Well, I wouldn't even go that far. I 16 would say someone trying to be a wholesale company 17 should, if they do have access, from my understanding, 18 to the wholesale Web page, to the PCAT, which is the 19 product catalogue within there, I think it describes 20 repair and maintenance procedures within that PCAT. 21 They -- if you are going to be a wholesaler and CLEC, I 22 guess you would know the rules to play by. 23 Q Okay. Can you turn to page 7, please. 24 Do you see, at lines 2 and 3, that opening of the cross 25 box put Qwest customers at risk of losing their voice 228 1 service. Do you see that? 2 A I see that. 3 Q Are you referring there to the taking of 4 the photograph or the previous viewings that permitted 5 me to know about the spare positions or both? 6 A Could be both. If -- when you open that 7 cross box to take the pictures, you could have 8 accidentally torn down some cross-connects. You could 9 have put Qwest customers at risk. You could have put 10 the metropolitan district at risk by tearing down some 11 of their cross-connects that operate their pumps. So, 12 you did put the network in jeopardy, is my opinion. 13 Q Is it physically possible to open and 14 close those doors while avoiding touching any 15 cross-connect wires? 16 A Is it physically possible? 17 Q Yes. 18 A Takes a wrench to turn the clasp to open 19 the door, yes. You can -- hopefully people can get in 20 and out without tearing down cross-connects. 21 Q Is it physically possible to do without 22 even touching any cross-connect wires? 23 A It's physically possible to make a 24 mistake and tear down some cross-connect wires. 25 Q I think the cross-connect box -- is it 229 1 labeled "Keep Out," or "Don't Open This," or anything 2 like that? Is there any labeling on the box that says 3 to people they shouldn't open it? 4 A Not to my knowledge, I don't think so. 5 Q Yeah. There's a place for a padlock on 6 the handle, right? 7 A The bottom of the handle. 8 Q Yes. 9 A I believe there is, yes. 10 Q Yes. There was no padlock on the box 11 when you saw it, right? 12 A There's not any padlocks on most of 13 Qwest's facilities, no, anywhere. 14 Q Right. The tool that's required to open 15 it, will this do it? 16 A If it's a 9/16th inch socket, it will. I 17 believe so. 18 Q That's the right size socket? 19 A Says "socket." This tool came from 20 Sears, right. It says "Craftsman." 21 Q This tool has lots of uses that have 22 nothing to do with a telephone company box, right? 23 A I suppose, yes, sir. 24 Q Well, you don't think -- 25 A It's just a socket. Takes a socket to 230 1 open -- it does take this kind of tool to open it. 2 Q Okay. Is it fair to say that you 3 personally don't know for sure that either access was 4 unauthorized, the access where I learned about the two 5 spare positions and the access where I took the 6 photograph? Isn't it fair to say that you don't know 7 for sure that either of those was unauthorized? 8 A In my view, you were in the cross box. 9 You were in there without a tech to be present. 10 Whether, you know, legally I suppose you could have a 11 case that the attorney gave you permission. The way I 12 see it, you didn't have a tech present with you. You 13 didn't have the joint meet. It was unauthorized. 14 Q But the first one -- 15 A Needless to say, Mr. Oppedahl, you were 16 in the cross box. 17 Q I understand. The first of the two 18 times, where I saw the two spare positions, as I 19 described in my direct testimony, in the company of a 20 Qwest installer, that wouldn't have been unauthorized, 21 right? 22 MR. TYMKOVICH: I object. That's not in 23 his direct testimony. It misstates the record. 24 MR. OPPEDAHL: I will read you page and 25 line. 231 1 A.L.J. KIRKPATRICK: Are you talking 2 about your direct or your -- 3 MR. OPPEDAHL: Yes, sir. Your Honor, I 4 didn't expect this to be controversial, but I can use 5 my computer to find the page and line in just a moment. 6 Okay? 7 BY MR. OPPEDAHL: 8 Q I will give the witness a Hearing Exhibit 9 1, the prefiled direct testimony of Carl Oppedahl. I 10 will ask the witness to look at the bottom of page 4 11 and the top of page 5. Please let me know when you 12 read that paragraph, sir. 13 A Starting on line 14? 14 Q Yes, sir. 15 A Bottom paragraph starting on line 14. I 16 have read it. 17 Q Okay. Assuming that that's true, that I 18 have gained familiarity with the outside plant in the 19 Ruby Ranch neighborhood by working closely with Qwest 20 personnel as they have installed and repaired various 21 services, wouldn't that mean that my learning about two 22 spare positions in the cross box might well not 23 represent unauthorized access to the cross box without 24 Qwest people being present? 25 MR. TYMKOVICH: Your Honor, I would 232 1 object. His testimony does not say anything about 2 getting into the cross-connect box. So, it's contrary 3 to the question he asked previously. And secondly, the 4 pending question is hypothetical. That is also not 5 supported by the testimony. 6 MR. OPPEDAHL: I will ask you a 7 hypothetical, sir. 8 BY MR. OPPEDAHL: 9 Q If the way I learned about the spare 10 positions was by standing next to some Qwest employee 11 who was doing work at the cross box, that would not be 12 unauthorized access by me, would it? 13 MR. TYMKOVICH: Your Honor, I would 14 object. It's outside the scope of the direct 15 testimony, and his testimony does not say that there 16 was an open cross-connect box anywhere in the 17 testimony. 18 A.L.J. KIRKPATRICK: He can answer. 19 THE WITNESS: If you were standing behind 20 the tech that was working in the cross box, you could 21 be standing on your own property. That's not 22 unauthorized, no. I have no way of knowing that. 23 A.L.J. KIRKPATRICK: Okay. We spent a 24 lot of time on this. I have given a lot of leeway. I 25 realize this is a personal matter with you. 233 1 MR. OPPEDAHL: I am told I had done 2 something wrong. 3 A.L.J. KIRKPATRICK: I am going to give 4 you a chance on direct. I think we've gone as far as 5 we can on cross with it. 6 MR. OPPEDAHL: Yes, Your Honor. 7 A.L.J. KIRKPATRICK: Let's move on. 8 MR. OPPEDAHL: If I could confer with, 9 just briefly, with Mr. Bork, I think we're very close 10 to being done. 11 A.L.J. KIRKPATRICK: All right. 12 MR. OPPEDAHL: Your witness, 13 Mr. Tymkovich. Thank you, Mr. Hubbard. 14 THE WITNESS: Thank you, Mr. Oppedahl. 15 REDIRECT EXAMINATION 16 BY MR. TYMKOVICH: 17 Q Now, Mr. Hubbard, there was -- let's just 18 start where we finished up, on access to the cross box. 19 It really doesn't seem that there's any dispute that 20 Mr. Oppedahl was in the Qwest cross-connect box at 21 sometime early in January. Would you agree with that? 22 MR. OPPEDAHL: Objection. Leading. 23 A.L.J. KIRKPATRICK: It's leading. 24 Sustained. 25 BY MR. TYMKOVICH: 234 1 Q Does it matter, for purposes of your 2 testimony, about risks that were posed to Qwest's 3 network, does it matter to you or Qwest, when they are 4 talking about the insurance risks, whether that viewing 5 was authorized or not? 6 A No. To gain access to an FCP cross box, 7 Mr. Oppedahl should have had a joint meet with a 8 technician there at that point. Since he was in the 9 box without a technician there, he would be liable for 10 any damage caused, whether authorized or unauthorized. 11 Q Would that hold true for access by any 12 other person to the Qwest equipment? 13 A Yes. 14 Q And what are some of the risks that are 15 posed by access to the cross-connect box without the 16 presence of a Qwest personnel? 17 A Well, you know, things happen. A risk 18 is, like we talked -- like I just talked with 19 Mr. Oppedahl, tearing down cross-connect wires. You 20 have got -- they are feeding customers, our customers, 21 Qwest's customers out there. You have got 22 out-of-service with them. You have got the 23 metropolitan, got their pumping stations up there. You 24 have got risk to their pumps or their water system, 25 however they have got that hooked up. So, you know, 235 1 there's risk out there. 2 Q Did that -- could that knock out, for 3 example, 9-1-1 service to the neighborhood? 4 A It could knock out, if he tore down a 5 couple of cross-connects to POTS lines, it will knock 6 out 9-1-1 service to them, to the customers. 7 Q Are those the sort of insurance risks 8 that you were talking about in your testimony? 9 A That's some of the risks that are 10 inherent to the network. You got customers up there 11 that need to make a 9-1-1 call, emergency call, and 12 they are out-of-service for whatever reason, the Co-op 13 member accidentally tore down their cross-connect, 14 someone is going to be liable for that. If they can't 15 get hold of 9-1-1, and they need emergency vehicles out 16 there, if that's a risk, if we could prove it back to 17 the Co-op, and they took the claim against Qwest, we 18 would seek a claim against the Co-op. 19 Q And you would expect or would hope that 20 the Co-op would have some assets or insurance to 21 protect Qwest against that risk? 22 A I would hope so. 23 Q Will Ruby Ranch, as an interconnection 24 customer, if it executes an interconnection agreement, 25 have ongoing access to Qwest's facilities as a part of 236 1 its maintenance and repair obligations? 2 A Through the maintenance and repair, yep. 3 If there's trouble on the line, either one of their 4 cards goes bad, or even something at Qwest's network, 5 it's up to the Co-op to prove which way the trouble is, 6 whether it's in Qwest's network or back in their own 7 network. That's at the cross box at the FCP. So they 8 will have ongoing maintenance issues, repair and 9 maintenance issues. 10 Q Does that create ongoing risks for Qwest? 11 A If they don't have a joint meet there 12 with Qwest, yes. 13 Q And that's something that Qwest hopes to 14 have insurance against? 15 A Yes. 16 Q Now you also testified about the 17 installation that Ruby Ranch envisions between the 18 DSLAM and the barn and connection to the Qwest 19 cross-connect box. And Mr. Oppedahl ran through a 20 series of questions with you about the trenching 21 operations there, and you testified about some of the 22 risks that you saw created as a part of the 23 construction process. 24 Is it a foreseeable risk that you -- that 25 there will be Qwest cable that would be cut as part of 237 1 the installation processes here? 2 A That's always possible. And that happens 3 in the field all of the time, even with cables, our own 4 cables that are located properly, when you are digging 5 in close proximity to those cables, you have a risk of 6 a trencher or a backhoe cutting our facilities. 7 Q Who would be responsible? 8 A That we would seek recovery of the costs 9 to repair it from the Co-op, if they caused it. 10 Q Now, there was also some testimony about 11 the installation of the SDSL lines and a connection, 12 about the technical nature of that installation. Is 13 the SDSL line that Ruby Ranch proposed from 14 Mr. Oppedahl a symmetric line? 15 A It's symmetric. 16 Q It is symmetric? 17 A Symmetric. 18 Q What type of risk does that create to the 19 network, in your experience. 20 A You know, a lot of our CLECs in our 21 Central Offices are running SDSL. You have -- SDSL is 22 compatible with itself. It is not always compatible 23 with every other type of DSL that is out there. We 24 don't know what's going to go in there in the future, 25 so there could be some compatibility risk in the 238 1 future. 2 Q And does that create the potential for 3 interference with Qwest's services? 4 A It depends on what Qwest is providing out 5 there. It could. 6 Q And there was also some testimony about 7 the equipment that was going to be installed by Ruby 8 Ranch and the compatibility of that equipment. What 9 happens if that equipment isn't properly installed 10 initially? What risks does that create for the 11 network? 12 A If it's not properly installed, properly 13 grounded or bonded -- a ground is to take an electrical 14 surge to ground, so it doesn't -- it doesn't 15 necessarily hopefully travel up the sheath, but if it's 16 not properly grounded and bonded, then you have the 17 potential for power surges coming through the sheath 18 from the equipment itself. 19 Q And does that create risk to Qwest's 20 network? 21 A Sure. 22 Q Is that one of the risks that the 23 insurance is designed to protect against? 24 A Yes, it is. 25 Q What if the equipment that's installed by 239 1 Ruby Ranch malfunctions because it wasn't properly 2 designed or it has some flaw in the equipment? Could 3 that create the potential for risk to Qwest's network? 4 MR. OPPEDAHL: Objection. This 5 duplicates direct. These are all asked and answered. 6 I wasn't objecting, but it's going on and on. It all 7 duplicates direct. 8 A.L.J. KIRKPATRICK: Well, "duplicates 9 direct." Is it beyond the scope of your cross too? Is 10 that what you are saying? 11 MR. OPPEDAHL: Well, it's asked and 12 answered, for one thing. 13 A.L.J. KIRKPATRICK: It seems repetitious 14 to me. 15 MR. TYMKOVICH: I will move on, Your 16 Honor. 17 BY MR. TYMKOVICH: 18 Q Now, Mr. Hubbard, you also testified 19 about elements of Qwest's network personnel in creating 20 the quote preparation fee. Do you remember that 21 testimony? 22 A Yes. 23 Q And is the analysis that you were 24 describing included in a TELRIC cost study that Qwest 25 submitted to the Colorado Public Utilities Commission? 240 1 A Yes. That's where the rates came from, 2 from the commission. 3 Q And when was that submitted? 4 A That was the December ruling out of 577T, 5 I believe. That's where the rates came out of. 6 MR. TYMKOVICH: If I can have one second, 7 Your Honor. 8 A.L.J. KIRKPATRICK: Uh-hum. 9 MR. TYMKOVICH: No further questions. 10 A.L.J. KIRKPATRICK: Okay. Thank you, 11 Mr. Hubbard. 12 MR. OPPEDAHL: Your Honor, I have three 13 questions for him, but I would understand the reporter 14 would have -- would want to have the break. 15 A.L.J. KIRKPATRICK: What do the 16 questions relate to? You know my policy on -- 17 MR. OPPEDAHL: I am sorry. One question 18 I hoped to ask the witness, was any damage -- to his 19 knowledge, was any damage caused to that cross box by 20 my photograph. 21 A.L.J. KIRKPATRICK: That's part of your 22 cross, wasn't it? 23 MR. OPPEDAHL: Only in his redirect did 24 he talk about how I could have caused -- that for all 25 he knows, I caused damage to the box. 241 1 A.L.J. KIRKPATRICK: I think you had 2 ample opportunity, again, to explore that. 3 MR. OPPEDAHL: Okay. 4 A.L.J. KIRKPATRICK: On cross. Thank 5 you, Mr. Hubbard. Again, make sure you leave all 6 official exhibits. 7 THE WITNESS: One question, Mr. Oppedahl. 8 Is this your copy of this one? I don't think that's an 9 exhibit. The other two, I believe, are exhibits. 10 MR. OPPEDAHL: Yes. 11 A.L.J. KIRKPATRICK: Okay. I know we 12 have several matters -- more matters. Let's take a 13 ten-minute break. 14 MR. TYMKOVICH: Your Honor, we're 15 prepared to rest, with the exception of introducing the 16 admission that we discussed earlier, and during the 17 break, I can get those together, tender them to the 18 court, and then be done with that piece. 19 A.L.J. KIRKPATRICK: Okay. Is 10 minutes 20 enough time? 21 MR. TYMKOVICH: Yes, sir. 22 A.L.J. KIRKPATRICK: Let's take a 23 10-minute break. 24 (Recess.) 25 (Whereupon Exhibit Nos. 33 and 34 were marked 242 1 for identification.) 2 A.L.J. KIRKPATRICK: Okay. Are we ready 3 to resume? Mr. Tymkovich, you were going to -- 4 MR. TYMKOVICH: Your Honor, I tendered to 5 the court reporter to mark two exhibits. First, the 6 top one is marked as Exhibit 33. The second one is 7 Exhibit 34. 8 Exhibit 33 are three requests for 9 admission from Ruby Ranch to Qwest, in the interests of 10 completing the set that Mr. Oppedahl tendered. And the 11 second exhibit, Exhibit 34, are a series of 12 interrogatory requests to Ruby Ranch from Qwest and the 13 responses. And we would offer those to be admitted on 14 the same basis as the other discovery responses 15 admitted this morning. 16 A.L.J. KIRKPATRICK: Let's talk about 17 these individually. What about 33? Do you have any 18 objection to the admission request? 19 MR. OPPEDAHL: No objection. 20 A.L.J. KIRKPATRICK: Okay. Well, again, 21 we're assigning them an exhibit number. They are not 22 really an exhibit, but they have evidentiary value. 23 They are part of the record. Okay. Then 34 is the 24 series -- I see there's an interrogatory, and then 25 there's a series of mostly admission requests. 243 1 MR. OPPEDAHL: No objection, Your Honor. 2 A.L.J. KIRKPATRICK: Any objection to 3 those? 4 MR. OPPEDAHL: No objection. 5 A.L.J. KIRKPATRICK: For consistency's 6 sake, let's assign Exhibit No. 35 to the Co-op's 7 package of requests for admission and responses. 8 MR. OPPEDAHL: Yes, Your Honor. 9 A.L.J. KIRKPATRICK: Okay. Anything else 10 from Qwest? 11 MR. TYMKOVICH: No, Your Honor. We rest. 12 A.L.J. KIRKPATRICK: Okay. I indicated 13 that I would allow Mr. Oppedahl an opportunity to 14 discuss a few of the matters, in particularly the 15 microwave placement and other appropriate matters. So, 16 why don't we take care of that at this time. 17 MR. OPPEDAHL: It would be very brief, 18 Your Honor. Probably less than five minutes. 19 A.L.J. KIRKPATRICK: Okay. Mr. Oppedahl, 20 you have been previously sworn and remain under oath in 21 this proceeding. 22 MR. OPPEDAHL: Yes, Your Honor. 23 DIRECT EXAMINATION 24 MR. OPPEDAHL: On the subject of my 25 photograph of the interior of the cross box, I 244 1 testified that I interpreted Mr. Tymkovich's E-mail as 2 an approval for my taking the picture. My feeling is 3 that Mr. Tymkovich must have had the sense that -- must 4 have had the same view, given his later E-mail. 5 On the subject of my having knowledge 6 that the cross box was possessed of two spare 7 positions, I testify that I saw that box open numerous 8 times in the last five years while Qwest did work in 9 the area, in many cases, for data lines and in my house 10 and the house of a neighbor of mine. 11 On the subject of whether the Co-op would 12 ever have reason to open the cross box in the future, 13 the answer -- my testimony is the Co-op would have no 14 intention of opening the cross box without Qwest's 15 approval. The only reason it happened this month in 16 January was because of my exchange with Mr. Tymkovich 17 on a very specific point, and I have no reason to think 18 that there would be exchanges with Qwest's counsel in 19 the future relating to the ordinary routine operations 20 of the Co-op. I certainly commit that the Co-op would 21 never open the cross box without Qwest's approval. 22 Finally, a very important point is to 23 make clear my reason for taking that photograph, my 24 reason for having the exchange of E-mails with Mr. 25 Tymkovich that led to the photograph. The reason is a 245 1 very clear one. Qwest originally denied there were 2 spare positions in that cross box. The denial was 3 material -- 4 MR. TYMKOVICH: I would object. I think 5 the reason is irrelevant or immaterial to the testimony 6 that was on the direct and cross. 7 A.L.J. KIRKPATRICK: Mr. Oppedahl, you 8 can stay seated while you put on your different hat and 9 respond. 10 MR. OPPEDAHL: The questions that were 11 posed to Mr. Hubbard in his redirect just a few minutes 12 ago were questions that brought into doubt my state of 13 mind when I took the photograph. And it was my 14 intention, in two sentences or less, to state clearly 15 my state of mind and my reason for taking the 16 photograph. 17 A.L.J. KIRKPATRICK: I will allow it. 18 MR. OPPEDAHL: Qwest originally denied 19 that there were spare positions in the cross box. This 20 denial was in writing, signed by counsel. It was an 21 official position of Qwest. It frankly should have 22 been done with reasonable inquiry, under the Colorado 23 state rules that parallel the federal Rule 11. It had 24 been my hope to avoid any acrimony or unpleasantness 25 between the parties, but to find a noncontroversial, 246 1 nonconfrontational way to give Qwest the information it 2 would need so it would appreciate that denial wasn't 3 appropriate, and that an admission would, in fact, be 4 appropriate. The practical consequence is that we now 5 have the admission on record and it is a clear thing on 6 the record that there's a spare position. That was my 7 motive for having the E-mail exchange that led to the 8 photograph. That concludes my testimony. 9 Your witness. 10 A.L.J. KIRKPATRICK: Okay. Cross. 11 CROSS EXAMINATION 12 BY MR. TYMKOVICH: 13 Q Mr. Oppedahl, you testified that the 14 Co-op has no intention to gain access to Qwest's 15 facilities without Qwest's permission, correct? 16 A What I said was we have no intention to 17 open the cross box without Qwest's permission. The 18 very rental of subloops has here been interpreted as 19 gaining access to Qwest's facilities. Of course it is 20 our goal to rent subloops and to connect SDSL signals. 21 Q Just so I am clear, if the Co-op has hope 22 to request access to Qwest's facilities through the 23 purchase of the subloop, it has no intention of gaining 24 access to the cross box? 25 A If you can break it into two parts, I 247 1 would like to answer each part separately in the hopes 2 of being as clear as I may. 3 Q Okay. Sure. You, Ruby Ranch, does hope 4 to gain access to Qwest's facilities through the 5 purchase of the subloops, "yes" or "no." 6 A By renting subloops, it hopes to gain 7 access by renting subloops. 8 Q That's the question. 9 A By renting subloops, yes. 10 A.L.J. KIRKPATRICK: You said, 11 "purchase." Purchase sometimes implies buy. It can 12 also be used as a rent sort of thing. That's a 13 sticking point on that question. 14 THE WITNESS: Well, there are two 15 sticking points. One is I don't mean that we would 16 somehow, by renting subloops, also gain access to some 17 other facilities somewhere that we haven't talked 18 about. All we're talking about is the subloops 19 themselves. That's one important part. 20 The other part is to make clear that all 21 we are seeking is to rent them, and, indeed, as his 22 Honor correctly points out, I am uncomfortable with the 23 word "purchase." I don't know if that's a fair 24 description. 25 BY MR. TYMKOVICH: 248 1 Q You also testified in your surrebuttal, 2 you have, Carl Oppedahl, have no intention of getting 3 into the cross-connect box; is that true? 4 A Not without Qwest's permission. 5 Q And there are other members of the Co-op, 6 correct? 7 A Yes. 8 Q And there could be up to 10 or 20 members 9 of the Co-op in the future? 10 A Well, the number of homes in the 11 neighborhood, if fully built out, could be 60, and I 12 suppose it's conceivable that every last homeowner 13 would want to join the Co-op, in which case the number 14 could reach as many as 60. 15 Q The Co-op has a board of directors of 16 which you are one? 17 A Yes; that's right. 18 Q And Mr. Bork, who has been at trial 19 today, is he another member of the board of directors? 20 A Yes. 21 Q And you are not purporting to speak for 22 Mr. Bork or future members of the Co-op, are you, about 23 whether or not they will agree to refrain from access 24 to the Qwest cross-connect box? 25 A I frankly feel that our neighborhood is 249 1 close enough and cohesive enough that I believe I speak 2 for our neighborhood generally. No one in our 3 neighborhood has any intention of doing anything that 4 would put at risk our own dial tone and our own ability 5 to dial 9-1-1. I frankly find it difficult to imagine 6 why anyone in our neighborhood would want to do such a 7 thing. 8 Q Because they wouldn't want to create a 9 risk of damaging the Qwest network or the Ruby Ranch 10 DSL facilities, correct? 11 A Either one. They wouldn't want to damage 12 either one. 13 Q Right. And let's assume with me, then, 14 that one of your members did sort of not follow your 15 request, or somebody in the future, after you have 16 moved out of the neighborhood, didn't know about your 17 instructions, and gets in the cross-connect box and 18 creates damage to Qwest's facilities, knocks out lines, 19 shuts down the Willowbrook Metropolitan District lines, 20 knocks out 9-1-1. Now, in those circumstances, 21 wouldn't you agree with me that that would have created 22 a risk that could cause damage to Qwest and its 23 customers? 24 A I am really not comfortable within the 25 question as posed, because the same thing could have 250 1 happened a year ago, or two years ago, when there was 2 no Co-op, and I find that indistinguishable from the 3 present circumstances. 4 Q So, you would agree, then, that in the 5 scenario that I just posed to you -- 6 A.L.J. KIRKPATRICK: Excuse me. You may 7 use the podium, Mr. Tymkovich. Continue. 8 BY MR. TYMKOVICH: 9 Q The Co-op or its members could 10 unintentionally create damage to the Qwest equipment 11 that could damage the connections to its customers and 12 create the hazards that I have described? 13 A Actual experience in the neighborhood 14 strongly suggests otherwise. 15 Q You would hope. 16 A The cross box has been there 20 years, 17 and I believe that the kind of thing you have described 18 has never happened, and there's no particular reason to 19 think it would be any more likely in the next 20 years. 20 Q You hope it would not happen? 21 A My suggestion is that if Qwest is worried 22 about this, put a 50-cent padlock on that box rather 23 than make us buy a $1500 insurance policy. That would 24 solve the problem and it wouldn't cost us a 1500 a year 25 forever. 251 1 Q But you would agree with me that if 2 somebody did gain access to that box, they could create 3 the kind of damage that I described; isn't that true? 4 A Only in the sense that anything, no 5 matter how remote conceivably, could happen, only in 6 that sense, which I do not credit as being worth every 7 day consideration. It didn't happen in the last 20 8 years. I don't think it's anywhere particularly more 9 likely to happen in the next 20 years. 10 Q And those remote circumstances are 11 precisely the purpose for insurance, correct? 12 A No, no. Most remote things insurance 13 doesn't even cover. Acts of God, war, terrorism, those 14 are the very things insurance doesn't cover. And they 15 have exclusions. Insurance covers things that happen 16 often enough that you can develop statistical 17 experience, risk experience as to how often something 18 really happens, how often somebody dies at age 53 or 19 73. It happens all of the time and you can average 20 them. Things that are remote, acts of God, force 21 majeure, terrorism, those are excluded, nuclear war. 22 No, that's not what insurance is for. 23 Q But insurance would be for the type of 24 risk that the Qwest witnesses have testified about this 25 afternoon? 252 1 A I don't believe I can say as to all of 2 those risks. I suppose it's possible, but at least as 3 to some of those risks, the risk experience is such 4 that you could write insurance and insurance would be 5 intended for some of those risks. 6 Q Your problem is you just don't agree that 7 risks ought to be covered at all and Ruby Ranch need 8 not purchase any insurance, correct? 9 A My feeling is that the risk posed by the 10 Co-op is less than that posed by even one of the 40 11 POTS customers in that neighborhood. They are not 12 required to buy million dollar insurance policies. I 13 can't think of a legitimate reason to make the Co-op 14 buy an insurance policy under the circumstances. 15 Q But you are aware of the testimony of 16 Mr. Easton, that insurance components are not built 17 into the rates charged? 18 A.L.J. KIRKPATRICK: We're going to go 19 around in a circle if we try and just address every 20 argument that's been raised. So -- 21 MR. TYMKOVICH: I guess I am finishing 22 up, then, with Mr. Oppedahl. 23 BY MR. TYMKOVICH: 24 Q You would agree with me, then, wouldn't 25 you, that there is a risk posed to the Qwest network by 253 1 the proposed installation work and ongoing maintenance 2 work of the Ruby Ranch Co-op's interconnection project? 3 A Not a risk that rises to the level of 4 requiring business consideration, not a risk that rises 5 higher than the level of existing POTS customers. 6 Well, risk but not rising to either of those levels. 7 MR. TYMKOVICH: Thank you. 8 A.L.J. KIRKPATRICK: Okay. Mr. Oppedahl, 9 before you go, I am going to exercise my option to go 10 out of order and ask you about something that was 11 attached to your testimony, if you could get out your 12 exhibit, the subloop leasing agreement between Qwest 13 Corporation and Ruby Ranch. 14 MR. OPPEDAHL: I am wondering if you are 15 referring to Trial Exhibit 24. 16 A.L.J. KIRKPATRICK: Probably is. Mine 17 are all together. Yes. Hearing Exhibit 24. 18 MR. OPPEDAHL: Okay. I think I have it 19 here, Your Honor. 20 A.L.J. KIRKPATRICK: Then on, just as I 21 was reading this paragraph 6, if you could direct your 22 attention to that. 23 THE WITNESS: Yes, sir, Your Honor. 24 A.L.J. KIRKPATRICK: Again, you will just 25 have to bear with my ignorance on this. I think it's 254 1 about the third or fourth sentence, starting with, "If 2 a Qwest customer complains of a voice service problem 3 that may be related to the use of a shared loop." What 4 do you mean by the term, "shared loop," there? I am 5 confused. As I understand your testimony, with SDSL, 6 there is no line-sharing. 7 THE WITNESS: Yes. You are absolutely 8 right, Your Honor. Line-sharing. What you see here is 9 a drafting mistake by me. When we first approached 10 Qwest in June of 2001, the Co-op did not yet know 11 whether it would go for aDSL, which is often a shared 12 loop product, or SDSL. And this sentence, 13 unfortunately, dates from a document that came from 14 June of 2001. It very quickly became clear during 15 negotiations that we could avoid a lot of concerns 16 about shared loop simply by sticking with SDSL. 17 What should have then have happened, I 18 should have taken this sentence out, because it no 19 longer applied, since we'll be doing SDSL. I am not 20 sure if that answers Your Honor's original question. 21 A.L.J. KIRKPATRICK: I think you got to 22 the chase, which is, does it really belong here if you 23 are talking SDSL. 24 MR. OPPEDAHL: The answer is, it doesn't. 25 A.L.J. KIRKPATRICK: Okay. That was my 255 1 only question. Thank you for that clarification. 2 MR. OPPEDAHL: Yes, Your Honor. 3 MR. TYMKOVICH: Your Honor, one cleanup 4 matter. And this request for admission that we 5 submitted, which was Exhibit 33, I gave -- I did not 6 give the most current version of the Qwest response to 7 the Ruby Ranch discovery. So, could I substitute that 8 page in for the official copy? 9 A.L.J. KIRKPATRICK: For which one? 10 MR. TYMKOVICH: This would be the Request 11 for Admission 24. We didn't give the most recent 12 supplement. 13 (Discussion off the record.) 14 A.L.J. KIRKPATRICK: Does the reporter 15 have those? 16 MR. TYMKOVICH: I only have one copy with 17 me, if I could get those into the official version. 18 A.L.J. KIRKPATRICK: Why don't you let me 19 see the two different versions? Why don't we just -- I 20 will just tear it out and put it in Mr. Oppedahl's. Do 21 you see what I am doing here? 22 MR. OPPEDAHL: If I may confer briefly 23 with Mr. Tymkovich and make sure we're clear. 24 (Discussion off the record.) 25 MR. TYMKOVICH: And, Your Honor, in the 256 1 response at the bottom of page it says, "spare pair," 2 in quotes. We would stipulate with Mr. Oppedahl to 3 change that to "spare position." 4 A.L.J. KIRKPATRICK: Okay. 5 MR. TYMKOVICH: If you make that 6 correction. 7 MR. OPPEDAHL: With that, there's no 8 objection to the proposed change. 9 A.L.J. KIRKPATRICK: Okay. I will just 10 substitute it then. 11 MR. OPPEDAHL: Then, Your Honor -- 12 A.L.J. KIRKPATRICK: Anything else? 13 MR. OPPEDAHL: The Co-op rests. 14 A.L.J. KIRKPATRICK: Anything else to be 15 dealt with other than a few housekeeping matters? 16 MR. TYMKOVICH: I don't believe so. 17 A.L.J. KIRKPATRICK: Two things that are 18 left then are closing statements of position and the 19 transcript. I previously directed that the transcript 20 would be filed -- correct me if I am wrong on this -- 21 by February 8th. 22 MR. TYMKOVICH: Yes, sir. 23 A.L.J. KIRKPATRICK: I assume that 24 parties have made arrangements, or will be making 25 arrangements with the reporter. I have ordered the 257 1 cost of the transcript be split as set forth in the 2 pre-hearing order. The closing statements of position 3 need to be filed right around that same period of time 4 in order to allow the commission sometime to review the 5 transcript, review the record, and make a decision, 6 which is due close to the beginning of March. I don't 7 have the exact date, it's not on me, but within a few 8 weeks after that. 9 MR. OPPEDAHL: I had the impression it 10 might be March 1. 11 A.L.J. KIRKPATRICK: I think it is March 12 1. So, closing statements of position really need to 13 be filed, probably -- 14 MR. TYMKOVICH: Your Honor, could we file 15 those a few days after we have the transcript, in case 16 there's anything that we want to add from the 17 transcript to the briefing? 18 MR. OPPEDAHL: It strikes me that citing 19 to page and line of the transcript might be helpful, if 20 anyone is reading papers. 21 A.L.J. KIRKPATRICK: It's going to be 22 helpful. Unfortunately the timing is just a little bit 23 problematic. 24 MR. OPPEDAHL: The reporter has indicated 25 she can E-mail it out, and that could well save a day, 258 1 anyway, and might make it so that very short amount of 2 time would permit both sides to do a good job, the 3 transcript coming out on Friday the 8th and perhaps 4 papers the following Monday the 11th. It would surely 5 make a big difference for the Co-op, Your Honor, and I 6 suspect -- 7 A.L.J. KIRKPATRICK: I can certainly do 8 that. Close of business on the 11th. That would give 9 you one full business day, plus the weekend. But, 10 again, you are going to have to do it primarily without 11 a transcript, and, in the best of all worlds, you would 12 have a transcript. Sometimes time constraints simply 13 don't permit. We'll say closing statements of position 14 are due February 11th. 15 MR. OPPEDAHL: Those could be filed by 16 fax, physically, with paper filing the following day. 17 A.L.J. KIRKPATRICK: They can, but let me 18 tell you that the commission rules say that has to be 19 filed the next business day. If you miss that next 20 business day, that filing goes out the window. You are 21 not going to be timely filing the fax on the 13th, 22 don't wait to file the hard copy until the 15th, if 23 your filing date is the 13th. 24 MR. OPPEDAHL: Yes, Your Honor. 25 A.L.J. KIRKPATRICK: I understand mail 259 1 delivery sometimes is a problem from where you live, 2 Mr. Oppedahl. 3 MR. OPPEDAHL: The hinterlands. 4 A.L.J. KIRKPATRICK: Has to be so. 5 February 11th, filing of the statements of position. 6 Anything else to be addressed today? 7 MR. TYMKOVICH: I don't believe so, from 8 Qwest's perspective, Your Honor. 9 A.L.J. KIRKPATRICK: Mr. Oppedahl. 10 MR. OPPEDAHL: No. 11 A.L.J. KIRKPATRICK: Okay. In that case, 12 thank you for coming. That concludes today's hearing. 13 (Whereupon Exhibit No. 35 was marked 14 for identification.) 15 (Whereupon these proceedings were 16 concluded at 3:40 p.m.) 17 18 19 20 21 22 23 24 25 260 1 CERTIFICATION 2 STATE OF COLORADO ) ) 3 CITY AND COUNTY OF DENVER ) 4 5 I, Harriet Weisenthal, do 6 hereby certify that I was present and reported 7 in stenotype the proceedings in the foregoing 8 matter; that I thereafter reduced my stenotype 9 notes to typewritten form, with the aid of a 10 computer, composing the foregoing transcript; 11 further, that the foregoing official transcript 12 is a full and accurate record of the proceedings 13 in this matter held at Denver, Colorado 14 on January 31, 2002. 15 FILED at Denver, Colorado________________________. 16 17 18 19 20 21 ______________________________ 22 Harriet S. Weisenthal, RPR 23 24 25