BEFORE THE PUBLIC UTILITIES COMMISSION
OF THE STATE OF COLORADO
RUBY RANCH INTERNET )
COOPERATIVE ASSOCIATION, ) )
PETITIONER ) ARBITRATION
) DOCKET NO. 01B-493T
V. )
)
QWEST CORPORATION, )
)
RESPONDENT )
QWEST?S RESPONSE TO PETITIONER?S SECOND MOTION TO COMPEL
Qwest Corporation (?Qwest?), through its counsel, under Commission Rule 77(b)(4) and Rule 37, Colo.R.Civ.P., files the following Response to Petitioner?s Second Motion to Compel.
Introduction
Petitioner Ruby Ranch Internet Cooperative Association (?Ruby Ranch?), a non-profit neighborhood organization proposing to act as a Competitive Local Exchange Carrier (?CLEC?), has filed its Second Motion to Compel. The Arbitrator denied as premature Ruby Ranch?s first Motion to Compel. As an initial matter, Qwest notes that Ruby Ranch did not confer with Qwest?s counsel about the discovery responses Ruby Ranch?s motion argues are insufficient before filing its Second Motion to Compel.
Ruby Ranch?s motion asserts that its representative conferred with Qwest?s counsel about the discovery requests addressed by Ruby Ranch?s motion. While it is true that Ruby Ranch has sent numerous e-mails purporting to substantiate the validity of Ruby Ranch?s many arguments, Ruby Ranch?s representative did not confer with Qwest?s counsel about the discovery responses addressed by Ruby Ranch?s motion. That type of discussion is required and, as should be evident by what follows, should have answered many of the complaints Ruby Ranch raises in its Motion.
Response to Second Motion to Compel
Ruby Ranch seeks responses in two basic areas. First, Ruby Ranch wants data and records about Qwest?s costs for certain equipment and services related to the rates Ruby Ranch disputes. All that information is addressed by Qwest?s summary judgment motion: i.e., as the summary judgment motion confirms, the information about the specific costs Qwest may incur to provide the services Ruby Ranch wants as a CLEC is irrelevant. Regardless of particular costs incurred to provide a service to any
one CLEC, Qwest must comply with the rates the Public Utilities Commission (?Commission?) has set for that service based on the average cost for all CLECs. If the Arbitrator enters summary judgment for Qwest, all of this cost evidence will be moot and no longer subject to debate in the upcoming hearing.
Nevertheless, as Qwest?s counsel confirmed to Mr. Oppedahl before he filed the Motion to Compel, Qwest will provide Ruby Ranch with a copy of the records of information about Qwest?s costs that Qwest submitted to the Commission in cost docket, Docket No. 99A-577T (the ?Cost Docket?). In compliance with Commission Rule 3 (723-16-3.8) regarding confidential information submitted to the Commission, before Ruby Ranch may have access to this cost information, Ruby Ranch must first execute and file a Commission-approved non-disclosure agreement.
Therefore, although this information should all be moot based on the legal standards considered in Qwest?s summary judgment motion, Ruby Ranch has no basis to seek to compel additional responses about Qwest?s costs because the cost data will be
made available as soon as Ruby Ranch provides the required non-disclosure agreement. The subject discovery is: Admission Requests 4 through 6; Interrogatories 8 through 12; and Document Requests 2 and 3.
The other principal type of information and records for which Ruby Ranch argues Qwest?s responses were inadequate concerns insurance coverage and Qwest?s risks. In summary, Ruby Ranch asked a number of questions regarding whether Qwest has ever made a claim against the kind of insurance policy Qwest is requiring Ruby Ranch to obtain as part of the proposed interconnection agreement. Ruby Ranch?s insurance-related admission request and interrogatories were based on insurance coverage for ? ?carriers providing SDSL over copper pairs rented from Qwest.?
Qwest responded to this kind of discovery by making objections based on relevancy and by stating that Qwest cannot respond to Ruby Ranch?s discovery because Qwest does not keep track of claims it has made by the type of insurance policy that covered or may have covered the particular damage.
This information still has no relevance to the issues to be arbitrated. Nevertheless, Qwest will supplement its response by stating that Qwest intends to support its position that Ruby Ranch must have insurance coverage with evidence about: (1) the types of risks to Qwest posed by allowing an association such as Ruby Ranch to connect to Qwest?s network; (2) Qwest?s knowledge about the availability of the type of insurance coverage Ruby Ranch needs as part of the proposed Interconnection Agreement; (3) with the fact that insurance coverage is a standard requirement of all CLECs who connect to Qwest?s network; (4) with the fact that Ruby Ranch has no operating experience that would diminish the likelihood it or parties it hires could cause
property damage or personal injury; and (5) with the fact that Ruby Ranch has no assets or other means to pay for any damage or injury for which it may be liable. Qwest?s responses to Ruby Ranch?s insurance-related discovery detailed the types of risks posed to Qwest when a CLEC such as Ruby Ranch proposes to be connected to Qwest?s network, and Qwest has confirmed that insurance coverage is a standard requirement for CLECs connecting to Qwest?s network. Ruby Ranch itself knows that it has no experience, or any assets or other way to pay for any damage or injury it, or its agents or contractors, may cause Qwest or any third party.
Qwest?s discovery responses also identified three publicly available records that support Qwest?s position that CLECs must have insurance coverage that protects Qwest in the event of property damage or personal injury for which a CLEC may be liable. Ruby Ranch complains that Qwest did not produce a copy of one of these documents: Volume VI ?The Commission Staff Report on the General Terms and conditions of Qwest?s Statement of Generally Available Terms (SGAT).? Again, the Staff Report is publicly available, and Ruby Ranch?s motion to compel does not state that Ruby Ranch cannot find the Report or identify any reason Ruby Ranch could not obtain a copy of the Report on its own. Nevertheless, Qwest is producing not only the Staff Report but
is also making available the following three records to which its responses referred.
Therefore, with the additional information and records provided above, and with Qwest?s assurance that it does not intend to introduce evidence about claims it has made against other CLECs? insurance, the insurance-related discovery Ruby Ranch seeks to compel should be moot. The subject discovery responses are Qwest?s answers to Admission Request 25; Interrogatory 1; and Document Requests 4 and 5.
The final disputed discovery response about which Ruby Ranch complains is Qwest?s response to Document Request 1, seeking a copy of the confidentiality agreement between Ruby Ranch and Qwest. On January 16, 2002, Qwest produced a copy of the only
confidentiality agreement it has from Ruby Ranch the agreement Ruby Ranch signed and sent to Qwest on or around July 26, 2001. Thus, Qwest has responded to this request properly and there is no reason to compel any additional response. Qwest also notes that it never based any discovery objection on this confidentiality agreement, which applies to any confidential record Qwest gives Ruby Ranch during the parties? negotiations about the proposed interconnection agreement. There thus is no reason for Ruby Ranch to waste time complaining that Qwest did not produce a copy of a document Ruby Ranch should have had in its records since last July and that has nothing to do with the rates Ruby Ranch is challenging in this Arbitration.
Qwest therefore respectfully requests the Arbitrator to enter an Order denying Ruby Ranch?s Second Motion to Compel, and awarding Qwest such further relief as the Arbitrator feels is just.
Dated this day of January 2002.
QWEST CORPORATION
By:______________________________________ Timothy M. Tymkovich, Esq., #12554 John R. Paddock, Jr., Esq., #12460 Hale Hackstaff Tymkovich, LLP
1675 Broadway, Suite 2000
Denver, Colorado 80202 303-592-8700
Kris A. Ciccolo, Esq., #17948
Winslow Bouscaren, Esq., #31695
Qwest Services Corporation
1005 17th Street, Suite 200
Denver, Colorado 80202 303-896-1518
CERTIFICATE OF SERVICE
The undersigned certifies that on this _____ day of January, 2002, a true and correct copy of the foregoing QWEST?S RESPONSE TO PETITIONER?S SECOND MOTION TO COMPEL was sent via e-mail and placed in pre-paid first-class mail properly addressed to the following:
Carl Oppedahl (carl@rric.net)
Ruby Ranch Internet Cooperative Association
c/o Oppedahl & Larson LLP
P. O. Box 5088
Dillon, CO 80435-5088