BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF COLORADO
Ruby Ranch Internet Cooperative Association,
Petitioner,
DOCKET NO. 01B-493T
v.
Qwest Corporation,
Respondent.
PREFILED REPLY TESTIMONY OF CARL OPPEDAHL ON BEHALF OF THE RUBY RANCH INTERNET COOPERATIVE ASSOCIATION
Please note that as of the date of this prefiled testimony, there are discovery requests outstanding to be answered by Qwest. The Coop thus necessarily reserves the right to add reply testimony, and additional exhibits thereto, depending on the resolution of the outstanding discovery requests.
The exhibits are being filed in a separately bound package. Please note that many of the exhibits referred to herein are, for the reader's convenience, also available at http://www.rric.net/arbitration/prexhibits.htm . This testimony is also available in HTML format on that page.
Table of Contents
Qwest can accommodate the Coop's request for subloops 8
Qwest's demand that the Coop obtain an insurance policy is unreasonable and without justification 10
Q. What is the purpose of this reply testimony?
A. The purpose of my testimony is to respond to the direct testimony filed by Qwest on January 17, 2002. The only direct testimony filed by Qwest on that day was the direct testimony of William R. Easton.
Q. Have you reviewed the direct testimony of William R. Easton?
A. Yes, I have.
Q. Mr. Easton says that Qwest "attempted to accommodate the unique requirements" of the Coop (P.3, Lines 11-12) and "made concessions, to the extent possible, to tailor the terms and conditions of the interconnection agreement to [the Coop's] unique circumstances as a non-profit cooperative association" (P.3, Lines 16-19). What is your response?
A. I must respectfully disagree. Qwest sent the Coop its standard, 250-page single-spaced interconnection agreement to the Coop. Most of this document -- well over 90% -- has no relevance to the Coop's need to rent subloops. As volunteers with full-time demanding day jobs, we do not have the time to review such a lengthy proposal, especially, when most of the document is irrelevant.
Q. What did the Coop do in response?
A. We prepared a four-page proposed contract that met our needs and asked Qwest to add provisions it believed were important. See Exhibit CO-19.
Q. Did Qwest do what the Coop asked?
A. No. Qwest refused to work from our proposal and demanded that we work from its 256-page document. Later, around August 15, 2001, Qwest sent to us a revised proposal that was only 100 pages in length, yet much of this contract still contained material that was not relevant to our situation. The lease of 10 or 20 subloops should not require a single-spaced contract that is 100 pages in length.
Q. Please address the first of the four concessions Mr. Easton says that Qwest made to accommodate the Coop.
A. Mr. Easton first notes that Qwest eventually reduced its insurance requirement from $11 million to $1 million (P.4, Lines 1-4). During our conferences I repeatedly discussed how the Coop's operations would pose no risk to Qwest, yet Qwest refused to discuss this matter.
Qwest's actions regarding the insurance only count as an attempt to accommodate because Qwest refused to negotiate from the four-page simple contract that the Coop proposed to Qwest. Instead, Qwest refused to negotiate from anything except its 256-page proposed agreement, which contained the eleven-million-dollar requirement.
Q. Please address the second of the four concessions Mr. Easton says that Qwest made to accommodate the Coop.
A. Mr. Easton recites the fact that Qwest gave the Coop a revised contract proposal, only 100 pages in length compared to the original 256-page document (P.4, Lines 4-8). But even a cursory review of this revised proposal demonstrates that it contains much material that is not relevant to the Coop's lease of subloops. The proposal certainly was not "tailored" to meet our "unique circumstance." But cutting 156 pages out of the 256-page single-spaced first draft only counts as an "attempt to accommodate" given Qwest's unreasonable first draft. Given the simple nature of the Coop's needs, what should have happened is that Qwest should have worked from the Coop's four-page proposal, adding in whatever terms and conditions it felt needed to add.
Q. Please address the third of the four concessions Mr. Easton says that Qwest made to accommodate the Coop.
A. Third, Qwest originally proposed a two-year term, the Coop countered with a four-year term and the parties quickly agreed to a three year term. According to Mr. Easton, this compromise constitutes another Qwest "concession" (P.4, Lines 10-11). Again, Qwest refused to negotiate from the Coop's draft (which called for a term of four years) but instead demanded that all negotiation be done from its draft (which called for two years). Only because of this demand by Qwest is it able to claim that the shift to three years was an "attempt to accommodate."
Q. Please address the fourth of the four concessions Mr. Easton says that Qwest made to accommodate the Coop.
A. Mr. Easton cites Qwest's willingness to accept orders via facsimile from the Coop (P.4, Lines 8-10). After the initial round of subloop orders, we may order only one or two subloops a year. It is not reasonable for Qwest to expect that a set of volunteers maintain a continuing familiarity with a complex mechanized ordering system (that may change over time) to place orders for such a small volume of subloops.
Q. Did Qwest really negotiate in good faith, as Mr. Easton suggests?
A. No, not at all. For example, during the August 1, 2001 session, Qwest's attorney questioned whether Qwest even had any duty to negotiate with the Coop, since the Coop had not been licensed by the Colorado PUC as a telephone company. The attorney took this position even though the FCC has made abundantly clear than an incumbent LEC "may not refuse to negotiate with a requesting telecommunications carrier, and a party may not condition negotiation on a carrier first obtaining state certification." Local Competition Order, 11 FCC Rcd 15499, 15577 P154 (1996). See also 47 C.F.R. S 51.301(c)(4)("If proven to the Commission, an appropriate state commission, or a court of competent jurisdiction, the following actions or practices, among others, violate the duty to negotiate in good faith . . . (4) conditioning negotiation on a requesting telecommunications carrier first obtaining state certification.").
Qwest presented an ever-shifting target on its views as to the "zone" in which the Coop's subloops were supposedly located. First, Qwest's position was that the Coop's subloops were in "zone 3" and thus that a $21.32 monthly rate was the take-it-or-leave-it price. Next, Qwest shifted position and said that the Coop's subloops were in "zone 1" and thus that a $15.12 monthly rate was the take-it-or-leave-it price. Still later Qwest shifted position again and said that the Coop's subloops were in "the base rate zone" and thus that an $8.33 monthly rate was the take-it-or-leave-it price. The Coop had repeatedly told Qwest that the subloops it wanted to rent were located entirely within the Ruby Ranch neighborhood. The Coop asked again and again how Qwest arrived at these various take-it-or-leave-it prices, or arrived at its unilateral view as to the applicable "zone," but Qwest never gave any explanation.
When the $1707.09 quote preparation fee and $126.49 subloop activation fee were first discussed in negotiations, Qwest represented to the Coop that these rates had been "approved" by the Colorado PUC. Mr. Easton now says those two prices were instead merely "proposed" by Qwest in the cost docket (P.6, lines 11 and 16).
Never, during any of the "negotiating" telephone conferences, did Qwest ever provide cost data to support the prices at issue in this arbitration, despite the Coop repeatedly asking for cost data relating to the various prices quoted by Qwest. Indeed even in this arbitration, Qwest refused in its January 3, 2002 discovery responses to provide any cost data.
Qwest can accommodate the Coop's request for subloops
Q. What does Mr. Easton say about Qwest's ability to provide the subloops the Coop needs?
A. He says nothing, which I find significant. During discovery, Qwest admitted that there are over 200 copper pairs in the Ruby Ranch neighborhood that it is not using. The Coop would at most need 60, which would still leave Qwest over 140 spare pairs to provide telephone services to the 20 additional houses that may eventually be built in the neighborhood.
Q. You testified in your direct testimony that Qwest must install a screw terminal block in its cross-connection box located in the neighborhood. What is such a block?
A. The Coop awaits production from Qwest of such a block, and the Coop will introduce it as Exhibit CO-17, a type of screw terminal block that Qwest would install in our cross-connection box.
Q. Does Qwest have room in the cross-connection box to install such a terminal?
A. Yes it does, but this matter requires somewhat of an extended answer. Qwest gave the following answer to Coop Admission Request No. 24 in its January 3, 2002 responses:
Request: Admit that the Crossbox has eight positions capable of receiving screw terminal blocks each with one hundred pairs of screw terminals, six of which are filled with screw terminal blocks and two of which are presently spare positions.
Response: Qwest objects to this data request as the request is not reasonably calculated to lead to the discovery of admissible evidence, and is also overbroad. Notwithstanding and without waiving these objections, Qwest denies.
I pursued this matter with Qwest's attorney, sending him a picture of the crossbox showing that there were, in fact, two available positions or slots for additional screw terminal blocks. Qwest's attorney has indicated that, in denying our request, Qwest had not actually visually inspected the cross-connect box to determine for itself whether there are two such spare positions. This raises the question of why Qwest denied the existence of such spare positions on January 3, 2002, if it had not conducted a visual inspection. In any event, Mr. Easton talks about "risks" to Qwest's network but nowhere does he say that the requested connection is not technically feasible.
Q. Did Qwest's supplemental discovery responses of January 24, 2002 address this question?
A. Yes, though in a very odd way. Instead of actually visually inspecting the cross-box, as Qwest's attorney said Qwest would do, what happened instead is that Qwest "admits that the photograph supplied by [the Coop] shows two spare positions." It is as though Qwest wishes to avoid actually taking a position as to whether there actually are spare positions for the terminal blocks, and instead would try to preserve the ability to deny the authenticity of the Coop's photograph.
Qwest's demand that the Coop obtain an insurance policy is unreasonable and without justification
Q. Mr. Easton recognizes that the Coop's lease of subloops poses less risk to Qwest than does a carrier that interconnects with Qwest at one of its central offices (P.10, Lines 18-21). Do you agree?
A. Yes. As I pointed out in my direct testimony, our proposed activity poses no material risk to Qwest, and certainly less risk than Qwest faces with POTS or LADS service, yet Qwest does not ask POTS and LADS customers to obtain an insurance policy as a condition to having service.
Q. Mr. Easton says that Qwest still believes that insurance is still necessary. Do you agree?
A. No. Qwest already leases subloops in the neighborhood to the Willow Brook Metropolitan District, and it does not ask that District to obtain an insurance policy. In my direct testimony I acknowledged that I had not measured the voltage on these leased subloops.
Q. Have you now had an opportunity to measure the voltage on one of the subloops that is used by the Metropolitan District?
A. Yes.
Q. What voltage did you measure?
A. The voltage on the line was 17 volts.
Q. How does that compare with the voltage on the subloops that the Coop hopes to rent from Qwest?
A. About seventeen times higher.
Q. Yet Qwest does not require the Metropolitan District to purchase an insurance policy naming Qwest as beneficiary as a precondition of placing this seventeen-volt signal on the subloops?
A. No, it does not.
Q. Have you any idea why this is?
A. The Metropolitan District uses the subloops to control pumps in its water supply system. Qwest isn't in the business of operating water supply systems. In contrast, Qwest does offer DSL, though not in our neighborhood. I expect Qwest has a natural business incentive to treat competitors, or would-be competitors, worse than it treats entities that cannot ever be competitors of Qwest.
Q. Mr. Easton recited numerous hypothetical situations that he says justifies Qwest's demand for a $1 million insurance policy. Would you like to respond?
A. Yes I would. Mr. Easton first says that "An uninsured subcontractor working at Ruby Ranch could fall off a ladder and, due to a lack of insurance by [the Coop], could seek damages from Qwest" (P. 9, Lines 10-12).
There are several problems with this. First, the Coop does not use and does not plan to use subcontractors. Second, nothing that the Coop needs to do will involve climbing ladders. Third, nothing the Coop will do will touch Qwest's equipment. More crucially, it also assumes an odd mindset by this hypothetical injured party. The hypothetical injured party apparently would have no interest in actually suing a party responsible for his or her injuries, but would instead simply cast about for some large, well-insured company to sue in a way that would (so far as one can understand Mr. Easton's testimony) have nothing to do with any fault of that party.
This hypothetical injured party could just as well sue the electric company. Or, if the ladder mishap were to occur in a house that has no DSL but that does have POTS service, we can just as well imagine that Qwest would be selected for the lawsuit simply because Qwest provides the POTS service in the house. Qwest presumably already has insurance (or has already made other provisions, such as self-insurance) to deal with the risk that such a groundless suit might be brought. But the existence of the Coop, or the carrying-out of the Coop's activities, do not (so far as Mr. Easton's testimony can be understood) meaningfully change this risk.
Mr. Easton next says that "this same uninsured subcontractor could damage Qwest's equipment" (P.9, Lines 12-13). There are the same difficulties as before with his testimony. The Coop does not use and does not plan to use subcontractors. But more saliently, nowhere in Mr. Easton's testimony does he explain how this "damage" could even happen. Presumably Mr. Easton is talking about either mechanical damage or electrical damage. As for mechanical damage, most Qwest equipment is miles away from the Ruby Ranch neighborhood. The cross-connect box is Qwest equipment, but nothing about the Coop's activities will come near the cross-connect box. Pedestals are Qwest equipment, but nothing about the Coop's activities will come near any pedestals. (A typical pedestal is shown as Exhibit CO-15.) Qwest equipment is at risk of mechanical damage from snow plows or errant automobiles, but not from any Coop activities.
In today's discovery responses, Qwest admits that the cable distance between Qwest facilities in the Ruby Ranch neighborhood and the remote terminal on Badger Road exceeds one-half mile. Qwest also admits that the cable distance between Qwest facilities in the neighborhood and the Dillon Central Office exceeds two miles. This reinforces my point that the nearest Qwest facilities (other than the pedestals and cross-connect box) supposedly at risk are quite far away.
As for electrical damage, as Mr. Easton admits (see P. 6, Lines 3-5), nothing that the Coop does will come into metallic electrical connection with any Qwest equipment (other than the very subloops to be rented by the Coop).
Mr. Easton next says that the Coop "could install equipment that is incompatible with Qwest's network" (P. 9, Lines 13-14).
Unfortunately, from his testimony it is impossible to discern what real or perceived incompatibility he is thinking of. The Coop's equipment will be connected only to its own equipment, and not to any Qwest equipment. In the sense that "anything is possible," I suppose the Coop could connect its DSLAM to, say, an SDSL modem that is incompatible. There would be no reason to do so (it would simply mean the subscriber's DSL service would not work, but would not harm anything), and indeed the Coop already knows perfectly well which SDSL modems are compatible with its DSLAM.
During discovery, Qwest identified four documents as authoritative regarding compatibility and risk to Qwest's network.
Q. What is the first of the four documents cited by Qwest?
A. Electromagnetic Compatibility and Electrical Safety -- Generic Criteria for Network Telecommunications Equipment (GR-1089-CORE) www.telcordia.com.
Q. Is the Coop's proposed activity in compliance with this document?
A. Yes. Exhibit CO-12 is a spec sheet for the SDSL equipment which the Coop plans to use. Exhibit CO-14 is a spec sheet for the DSLAM into which the SDSL line card is inserted. These documents state that our equipment complies with GR-1089-CORE. The DSLAM itself is exhibit CO-20 and a typical SDSL modem is exhibit CO-21.
Q. What is the second of the four documents cited by Qwest?
A. Qwest Technical Publication 77355 www.qwest.com/techpub/.
Q. What is the subject matter of this document?
A. It describes Qwest's own standards for grounding of its equipment. The standards cover grounding entire buildings, antenna towers, and a variety of other large and small structures.
Q. Will the Coop's equipment be in compliance with this document?
A. Yes. The Coop's equipment will be isolated from any Qwest facilities by grounded protectors installed and maintained by Qwest. I think it is safe to assume Qwest will follow its own standards for grounding of its protectors. In addition, the Coop's equipment will be grounded in full compliance with the instructions of the manufacturer, Copper Mountain Networks.
Q. What is the third of the four documents cited by Qwest?
A. Qwest says "ANSI standards such as T1.417 www.ansi.org/."
Q. Will the Coop's proposed activities comply with ANSI standard T1.417?
A. Yes. The ANSI standard T1.417 specifies spectral compatibility among signals passed on telephone lines. Voice signals are generally at 3 kilohertz or lower, and DSL and some other signals are generally at frequencies much higher than 3 kilohertz. One purpose of the ANSI standard T1.417 is to set forth standards which minimize the risk that various high-frequency signals might interfere with each other, or might interfere with POTS voice signals.
ANSI standard T1.417 specifically discusses SDSL (the variety of DSL which the Coop plans to install) and says that if it uses 2B1Q encoding, it is compliant with the standard (Exhibit CO-16). Our equipment uses such encoding, as shown in Exhibit CO-12. Indeed, as listed in the ANSI standard T1.417 itself, the manufacturer of our DSL equipment (Copper Mountain Networks) was a participant in the standards-setting process.
Q. What is the fourth of the four documents cited by Qwest?
A. Qwest says, "See also the Commission's Staff's statements in support of Qwest's requirement that CLECs carry insurance, in Docket No.971-198T, produced with Qwest's responses to Ruby Ranch's Production Requests."
Q. What does that document say about the need for insurance?
A. Qwest emailed to us what it says is that document. It says "Unless the CLEC will agree not to enter Qwest's premises for any purposes under its Agreement, the insurance requirement is entirely appropriate." (Para. 331, page 112, Exhibit CO-18.) The Coop has agreed not to enter Qwest's premises for any purposes. As such, the insurance requirement is completely inappropriate.
That document (para. 294, page 101, Exhibit CO-18) also cites a document filed on June 4, 2001 by Qwest in the SGAT proceedings, in which Qwest presented its position regarding insurance. This document, the rebuttal testimony of a Larry B. Brotherson, a director in Qwest's wholesale markets organization, is attached hereto as Exhibit CO-13. This Qwest testimony says on page 31:
Unless the CLEC will agree not to enter Qwest's premises for any purposes under its Agreement, the insurance requirement is entirely appropriate.
As I noted above, the Coop will not enter any Qwest premises and under the Coop's proposed contract, cannot enter Qwest premises. From what I can ascertain, the position Qwest has taken with the Coop is inconsistent with the position it took in the SGAT docket. In this proceeding, Qwest has pointed to the SGAT as somehow authoritative over the issues in this proceeding. And the position Qwest took in the SGAT docket is that if the interconnecting entity will never enter Qwest's premises for any purpose, the insurance is not needed.
Q. Have you any other comment regarding Mr. Easton's saying there are "compatibility" issues?
A. Mr. Easton knows or should know the particulars of the equipment that the Coop has said it proposes to install. If he were aware of some actual incompatibility, presumably he would have described it. It is impossible to evaluate his statement without some explanation by Mr. Easton of the supposed incompatibility. In any event, the subloops to be rented to the Coop never have any electrical connection with any Qwest switchgear, as Mr. Easton acknowledges, so it is difficult to see how compatibility could be an issue.
There are whole categories of customers of Qwest for which compatibility is an important issue, for example POTS customers. Such a customer could plug an incompatible piece of equipment into a telephone jack and signals from such equipment could be conducted to Qwest switchgear. But it's clear Qwest doesn't really care about such compatibility issues except where they may serve to slow down a would-be competitor of Qwest. For example, years ago Qwest required each POTS customer to provide the FCC Part 68 registration number for each telephone or other accessory plugged into a telephone jack. Qwest does not bother to do that any more.
Mr. Easton next talks about how "a power surge, electrical short or other problem" could damage Qwest's equipment (P.9, Lines 16-17). He ignores that to the extent this is a problem, it is a problem with POTS service where the telephone lines actually connect with Qwest switchgear. But with the subloops which the Coop wishes to rent, there is no connection to Qwest switchgear.
Mr. Easton next says, without explanation or support, that:
A problem with [the Coop's] equipment could also result in a hazardous condition leading to someone being injured or killed (P.9, Lines 18-19).
It is quite difficult to understand what sort of condition Mr. Easton is talking about, since he doesn't say. Is he talking about Qwest employees doing work in the cross-connect box or in a pedestal, and coming into contact with one of the Coop's subloops? Is he talking about someone being at the DSLAM (some three hundred feet from the nearest Qwest equipment) and being injured, and somehow holding Qwest, a football field distant, responsible for the injury? It is difficult to know how to analyze what Mr. Easton means, given the lack of any explanation.
It should again be noted that the Coop's equipment complies with the standards documents which Qwest has cited as authoritative. The Coop's equipment puts less than one volt on the subloops that the Coop hopes to lease. Qwest will have its own protectors in place (at the Coop's expense) which protect it against anything from the Coop's equipment, just as it has such protectors in place to protect it against anything from POTS customers. But without more from Mr. Easton, it is simply not possible to determine where he is mistaken.
Q. Mr. Easton says that the Coop can obtain the insurance policy Qwest is demanding for between $1,000 and $1,5000 annually, or between $10 and $15 monthly per Coop customer (P. 11, Lines 11-19). Please comment.
A. Unfortunately, Mr. Easton did not identify the insurance companies that Qwest thinks would write a policy for the Coop, so I could not verify this unsubstantiated claim. However, my direct testimony detailed the steps the Coop has taken to locate possible coverage, and to my knowledge, the Coop cannot obtain a policy that would satisfy Qwest.
Q. What would the Coop do if the Commission were to require the Coop to obtain an insurance policy but the Coop was unable to obtain such a policy?
A. The Coop could not provide service, and residents of our neighborhood would be deprived of the benefits of high-speed, always-on Internet access.
Q. Assume hypothetically that the Coop could obtain a policy that would equate to $10 or $15 monthly per customer. Would you object?
A. Yes I would. Qwest should not be allowed to inflate artificially the prices we charge to our customers, when (a) it is unable to document any material risk posed by the Coop's activity, and when (b) Qwest does not impose an insurance requirement in other services where the risks are substantially greater.
Q. Qwest responded to some discovery requests today. Do any of the responses affect your comments regarding the supposed need for insurance or the supposed risks to Qwest's network posed by the Coop's proposed activities?
A. Yes. One reason Qwest has given for the need for the Coop to have insurance is that the Coop would supposedly "have their own employees or subcontractors connect Ruby Ranch electrical equipment to Qwest facilities, and, if they choose, to connect their equipment to the public switched network." This is actually incorrect, as I discussed in my direct testimony. But while the Coop has no reason to do any work upon Qwest facilities (and indeed would not want to do so), the plain fact is that Qwest leaves the cross-connect box unlocked, even though there is a place for a padlock on the cross-connect box. Any member of the general public could open the cross-connect box (using a commonly available socket wrench). Setting aside what Qwest says and focusing on its actions (which speak louder than words), Qwest clearly does not perceive this supposed risk to be serious enough to even justify putting a padlock on the cross-connect box. Qwest should not be heard to complain of supposed risks from the Coop's activities (when the Coop will not have any reason to open the cross-connect box) when Qwest does not place a padlock on the box to keep out the general public. Importantly, Qwest today admitted that it does not lock the cross-connect box.
The same is true for the pedestals which Qwest incorrectly says the Coop would be leasing. Qwest does not lock them, and a commonly available socket wrench can be used to open them. Qwest also admitted that it does not lock the pedestals.
Q. What reply, if any, do you have to Mr. Easton's comments on the take-it-or-leave-it prices which Qwest has said are somehow forced upon it by the existence of an SGAT?
A. Well, first, the prices can't possibly be correct in the sense of being supported by the actual costs to Qwest to provided the underlying services to the Coop.
For example, a business telephone line costs $54 to install, which may include Qwest visits to the central office, to the Badger Road remote terminal (subscriber loop carrier box), to the cross-connect box, to a pedestal near the place where the line is being installed, and to the network interface device at the place where the line is being installed. This price also presumably somehow covers the labor cost of conducting a lengthy telephone call to obtain billing information, credit information, and the like.
Activating a subloop requires no lengthy telephone call, but merely adds another line to lines previously being rented by the Coop. The activation never requires central office work or work at the Badger Road remote terminal. The activation price should, by rights, be less than $54. Instead, against all common sense, the take-it-or-leave-it price placed on the table by Qwest is $120.67 well over double the $54 price.
The cost to quote a price for constructing a Field Connection Point is a take-it-or-leave-it $1107.09, recently reduced by precisely six hundred dollars and no cents from the previous $1707.09. Apparently the Coop is expected to believe that the underlying costs changed recently so that the fair and reasonable price is six hundred dollars cheaper, no more and no less.
The actual cost to Qwest to develop a price to construct the simple Field Connection Point which the Coop needs is surely less than one hundred dollars. It would take at most ten minutes for Qwest personnel to drive to the cross-connect box to see what must be seen to quote such a price, and another ten minutes to drive back. Including ten minutes to study the box, the total elapsed time is perhaps half an hour. At Qwest's published hourly rates, this is much less than a hundred dollars. Charging $1107.09 for work that should cost much less than one hundred dollars is simply gouging.
Q. Qwest attached to Mr. Easton's testimony a new proposed contract. See Exhibit WRE-1. Mr. Easton says that "with the exception of the two prices issues and the new insurance language mentioned above, however, Qwest believes that [the Coop] is in agreement with the contract language" (P.5, Lines 20-22). Is this accurate?
A. No. If the Coop were in agreement with the 100-page document sent to us on January 17, 2002 (or the previous 100-page draft sent to us on August 14, 2001), then we would not have raised this issue when we filed our Arbitration Petition. Our Arbitration Petition included an Attachment C which was the interconnection agreement which we felt to be appropriate for our simple needs.
It is difficult to understand how Mr. Easton could be under the impression that the Coop "is in agreement with" the 100-page Qwest proposal. In the Coop's response to Qwest's interrogatory 14, filed January 12, 2002 (before Mr. Easton's testimony), the Coop made clear that most of the 100-page proposal was irrelevant to the subloops needed by the Coop.
The Coop is composed of volunteers with demanding day jobs. Between the demands of their regular day jobs and the need to assist in review of Mr. Easton's testimony and exhibits, the Coop's volunteers have not had time to review the "latest" proposal dated January 17, 2002 from top to bottom. But even a cursory review demonstrates that it still contains many subjects that have no relevance to our subloop rental arrangement. It would take us hours to identify the irrelevant material in order to locate the material that might be relevant. The more sensible approach would be to do what the Coop initially proposed: Qwest should propose to add additions to the contract that the Coop proposed to Qwest.
Q. Are there timing issues of concern to the Coop regarding Qwest's proposed interconnection agreement?
A. Yes. A particularly troubling aspect of Qwest's proposed interconnection agreement is that signing the agreement provides no assurance that Qwest will actually rent the subloops within a reasonable time after signing. The proposed agreement says that Qwest is not obligated to even take orders for subloops, let alone actually activate subloops, until after a Field Connection Point is installed. (Section 9.3.5.2.1). Yet to obtain a Field Connection Point, the Coop would have to obtain a quote by paying a Quote Preparation Fee. Then, if the Coop has understood Qwest's proposal, the Coop would have to pay the entire quoted price in advance before Qwest will begin construction. Then Qwest is allowed to take a full ninety days to complete the construction of the Field Connection Point.
What's more, the Coop is concerned that Qwest will be dilatory in responding to our request for a quote for the construction of the Field Connection Point. We are unable to find, in Qwest's proposal, any language limiting how long Qwest can delay before responding to the request for a quote.
But nothing that the Coop can find in this proposal addresses what can be done if Qwest quotes an unconscionably high price for the Field Connection Point. And everything that the Coop has experienced thus far in these negotiations raises concern that Qwest will do exactly that. The Coop worries that Qwest will quote a punitive price for the Field Connection Point, and will refuse to take any step toward its construction until the entire quoted price is paid in advance by the Coop. Then Qwest can sit on the construction until 90 days has passed. Only after that would Qwest be willing to take orders for subloops.
If the Coop were to try to protest the unconscionable quoted price for the Field Connection Point, the Coop assumes Qwest will hold the entire process hostage (further delaying any possible launch of service by the Coop) through any proceedings that might follow. Indeed that's exactly what is happening right now with this arbitration -- Qwest is refusing to permit any interim launch of service. Stated differently, Qwest told the Coop that the only way to launch service promptly (e.g. within even half a year of when we first sought to lease the subloops) would be (a) to agree to all of Qwest's prices and conditions, and (b) to give up the ability to seek arbitration.
If Qwest had done anything at all to reassure the Coop on this point, things would be different. But Qwest has steadfastly avoided taking any position at all on what it may someday quote for the Field Connection Point, and has repeatedly refused to answer any of the Coop's questions about it. For example, the Coop knows perfectly well the parts that would be used to construct a Field Connection Point, and has repeatedly asked Qwest its prices for those parts, and Qwest has refused to answer.
The Coop first sought to rent subloops from Qwest on about June 1, 2001. These concerns about abusive pricing by Qwest for the Field Connection Point suggest that it is quite likely any launch of service would be dragged out until at least the year 2003. A delay of two years or more is quite at odds with the obligations imposed by the 1996 Act upon a telephone company such as Qwest.
Q. What would help to protect the Coop from such actions by Qwest?
A. Terms and conditions which would help to protect the Coop from Qwest would include:
Q. You testified earlier that Qwest's 100-page single-spaced proposed agreement had irrelevant and problematic portions. Can you give some examples of this?
A. Yes. Among the irrelevant and problematic portions of Qwest's latest proposal are:
The document, in its entirety, refers many hundreds of times to the Coop as a "CLEC," but the Coop is not and does not intend to be a CLEC.
Section 4.0 defines some fifty irrelevant terms.
Section 5.6 imposes the unreasonable insurance requirement discussed above.
Section 5.10 "Intellectual property" is irrelevant.
Section 5.18 contains language about "non-lawyers" which Qwest had previously agreed to remove, but has now reinstated without explanation.
Section 5.25 appears to violate the requirement that interconnect agreements should be a matter of public record. The section needs to be deleted.
All of section 9.2 appears to be irrelevant.
Section 9.2.2.5 refers to irrelevant Basic Rate ISDN.
Section 9.2.2.6 refers to irrelevant DS1 and DS3 loops
Section 9.2.2.9.1 refers to irrelevant unbundled loops.
Section 9.3.3 appears to be irrelevant.
Section 9.14 appears to be irrelevant.
Section 10.8 appears to be irrelevant.
Section 13.0 appears to be irrelevant.
Section 14.0 appears to be irrelevant.
Section 21.3.1 appears to be irrelevant.
Section 21.3.2 appears to be irrelevant.
Section 21.3.4 appears to be irrelevant.
Section 21.5 appears to state a falsehood, namely that technical publications are available from the identified company. The Coop contacted this company and was told that it no longer provides Qwest technical publications.
Q. Does the Coop have a better proposal?
A. Yes it does, and it is attached as Exhibit CO-22.