BEFORE THE PUBLIC UTILITIES COMMISSION

OF THE STATE OF COLORADO

RUBY RANCH INTERNET COOPERATIVE)

ASSOCIATION,)

)

PETITIONER,)

)ARBITRATION

v.)DOCKET NO. 01B-493T

)

QWEST CORPORATION,)

)

RESPONDENT.)

PETITIONER'S SECOND MOTION TO COMPEL QWEST

TO RESPOND TO PETITIONER'S DISCOVERY

The Ruby Ranch Internet Cooperative Association ("Coop"), petitions the Commission to enter an order requiring Qwest Corporation ("Qwest") to respond immediately to the discovery requests identified below that the Coop served on Qwest on December 12, 2001. Because the hearing is scheduled for January 31, 2002, the Coop respectfully requests that the Commission order Qwest to respond fully to these requests within two days of the Commission's decision on this motion.

Consistent with the requirements of Rule 77(b)(4), the Coop and counsel for Qwest have conducted several telephone conferences and exchanged several emails concerning the Coop's discovery requests. Although the parties have made some progress, they have been unable to resolve the issues discussed below.

Qwest's Relevancy Objections Are Baseless

In all of its responses to the challenged discovery requests, Qwest "objects" on the ground that "the request is not reasonably calculated to lead to the discovery of admissible evidence." This contention is baseless. The Commission has held that "[t]he scope of discovery is broad"

Relevancy in the discovery context in broader than relevancy at hearing. Martinelli v. District Court, 612 P.2d 1083, 1087 (Colo. 1980). It appears that the information sought does generally bear upon the issue of competition and competitive pressures in the switched access market. Therefore the Motion to Compel should be granted. The Commission's Rules on Confidentiality are sufficient to protect the confidential nature of this information.

In this instance, each of the admission requests discussed below is directly relevant to the issues in this arbitration proceeding,

Indeed, Qwest engages in bad faith in even raising these relevancy objections and in refusing to respond. As but one example, in Document Request No. 2, the Coop asked Qwest to produce"[a]ll cost and other documents, if any, substantiating Qwest's $1707 Quote Preparation Fee." Qwest "object[ed] to this interrogatory as not reasonably calculated to lead to the discovery of admissible evidence," and further "object[ed] to this request because it seeks highly confidential technical information." Qwest made these objections even though the Federal Communications Commission has squarely held that an incumbent LEC like Qwest engages in bad faith in not providing supporting cost data

It would be reasonable, for example, for a requesting carrier to seek and obtain cost data relevant to the negotiation . . . We conclude that an incumbent LEC may not deny a requesting carrier's reasonable request for cost data during the negotiation process, because we conclude that such information is necessary for the requesting carrier to determine whether the rates offered by the incumbent LEC are reasonable.

The Coop first sought to lease subloops from Qwest over seven months ago, and the arbitration hearing is scheduled to begin in approximately two weeks. It is time for Qwest to stop its gamesmanship and stalling tactics and to produce the facts that Qwest should have shared with the Coop months ago.

Two points bear emphasis concerning this Qwest objection. First, many of the requests are necessary because Qwest chose to offer certain terms on a "take it or leave it" basis and refused to provide any of the supporting information that the Coop had sought. Second, the admission requests are necessary because Qwest continues to "den[y] the factual allegations Ruby Ranch asserts in support of its claims" and "affirmatively states that there is no factual or legal support for each of Ruby Ranch's complaints." Qwest cannot legitimately deny that the Coop's claims lack factual support and then refuse to produce information that would help establish that the Coop's claims are supported in fact.

Admission Request Nos. 4 through 6

One of the issues in this arbitration is whether the $126.49 non-recurring fee that Qwest has demanded the Coop pay to install or activate a subloop is cost based. The Coop asked to admit that "Qwest's process of activating a Subloop for the Coop does not require Qwest personnel to do work at the Remote Terminal" (No. 4), at "any Qwest central office" (No. 5), or at "the Highway 9 Pedestal" (No. 6). Qwest's response (in addition to its standard relevancy objection) was as follows

Qwest refers to the PUC's findings in Docket No. 99A-577T, Commission Order, Adopted DateNovember 13, 2001.

The referred Order does not address the specific requests the Coop made of Qwest. The type and amount of work that Qwest must perform to activate a subloop for the Coop are directly related to the issues in this arbitration, and Qwest should be required to answer these requests.

Admission Request No. 25

The Coop asked Qwest to admit that "for carriers providing SDSL over copper pairs rented from Qwest, Qwest has never made a claim under an Insurance Policy arising out of the provision of SDSL service." Qwest choose not to answer this straightforward request

Qwest objects to this data request as the request is not reasonably calculated to lead to the discovery of admissible evidence, and is overbroad.

Qwest has demanded that the Coop secure an insurance policy of $1 million as a condition to leasing subloops, and the Coop has challenged this demand. Whether Qwest has made insurance claims in the past for similar activities is directly relevant to the dispute over the need for an insurance policy.

Interrogatory No. 1

The Coop asked, "For carriers providing SDSL over copper pairs rented from Qwest, state the number of claims which Qwest has made under Insurance Policies arising out of the provision of SDSL service, and for each claim give the date and dollar amount and describe the claim and the alleged harm to Qwest's network." Qwest choose not to answer this request because it does "not make its damage claims by type of service."

Information about past insurance claims is directly relevant to the insurance dispute in this arbitration proceeding, and Qwest should not be excused from providing highly relevant information simply because it chooses not to record its damage claims by type of service. To minimize any possible burden on Qwest, the Coop agrees to narrow its request to SDSL-related claims that Qwest made during the three-year period, 1999 through 2001.

Interrogatory No. 8

The Coop asked, "State Qwest's present cost for a one-hundred pair screw terminal of the type found within the Crossbox." In addition to raising a relevancy objection, Qwest chose not to answer this request, stating

FCP (Field Connection Point) costs vary based upon location, type of configuration, etc. CLECs with interconnection agreements containing FCP language may request a feasibility analysis. Through such analysis, Qwest would determine the type of connector block appropriate to the Crossbox, the cost of which would be included in the quote for establishing the FCP. However, the price of a one-hundred-pair screw terminal would not be itemized in the quote. Dissemination of such information is prohibited under third-party proprietary agreement limitations.

Qwest has been demanding that the Coop pay it a Quote Preparation Fee of $1,707.09 (although it very recently reduced this demand by $600 to $1,107.09). The cost of a screw terminal should be $100, perhaps $200, and it should take a Qwest technician at most one hour to install the terminal. Thus, although the Commission has held that the quote preparation fees may be credited against any further amount for which the CLEC may be liable to Qwest, in this instance the Coop's payment of $1,107 could result in an enormous windfall to Qwest, because Qwest's cost to purchase and install the needed screw terminal should approximate only $200 to $300. Qwest is familiar with its own equipment, it therefore knows (or should know) what screw terminals may be used with such a Crossbox, and it should be required to answer the Coop's reasonable request.

Qwest's answer is disturbing in a second respect. Qwest states that the quote it intends to submit to the Coop will not be itemized. But without an itemized quote, the Coop will have no basis on which to assess whether Qwest's quote is cost based. See First Local Competition Order, 11 FCC Rcd at 15578 ¶ 155 ("[A]n incumbent LEC may not deny a requesting carrier's reasonable request for cost data during the negotiation process, because we conclude that such information is necessary for the requesting carrier to determine whether the rates offered by the incumbent LEC are reasonable.'). Qwest's proprietary concerns can be addressed through a reasonable confidentiality agreement. To minimize future controversy, the Commission should direct Qwest to itemize any quote that it submits to the Coop.

Interrogatory Nos. 9 through 12

The Coop asked Qwest to state the "basis for its $1707 Quote Preparation Fee" (No. 9) and the "basis for its 126 non-recurring charge for installation of a Subloop" (No. 11). The Coop further asked Qwest to identify all cost or other documents, if any, substantiating Qwest's $1707 Quote Preparation Fee" (No. 10), and its "$126 non-recurring charge for installation of a Subloop" (No. 12). In addition to raising its standard relevancy objection, Qwest responded as follows

Qwest responds to this interrogatory by referring to the PUC's findings in Docket No. 99A-577T, Commission Order, Adopted DateNovember 13, 2001.

In the referenced Order, the PUC established certain prices related to Qwest's SGAT prices that are different than the prices Qwest had been quoting to the Coop. However, the Coop's requests did not ask for prices, but rather the costs that Qwest relied upon in substantiating the prices that Qwest had been quoting to the Coop. Qwest should be required to respond to these four requests.

Document Request No. 1

The Coop asked Qwest to produce the "nondisclosure agreement referred to by Qwest at page 5 of its November 19, 2001, Response." Qwest stated in its January 3, 2002 response that it "will provide the nondisclosure agreement." Counsel for Qwest has stated repeatedly that Qwest would produce this document, yet as of the date of this motion, the Coop has not received it. The Coop will advise the Commission if Qwest produces the document before the Commission's order on this motion to compel.

Document Request Nos. 2 and 3

The Coop asked Qwest to produce "[a]ll cost and other documents, if any, substantiating Qwest's $1707 Quote Preparation Fee" (No. 2) and its "$126 non-recurring charge for installation of a Subloop" (No. 3). In addition to raising its standard relevancy objection, Qwest responded as follows

Qwest also objects to this request because it seeks highly confidential technical information "substantiating" rates that are part of Commission's approved cost dockets or pending cost dockets. Notwithstanding and without waiving the objections, Qwest produces the PUC's findings in Docket No. 99A-577T, Commission Order, Adopted DateNovember 13, 2001.

Qwest's response, referencing the SGAT Order, did not answer the questions posed. In that Order, the PUC established certain prices related to Qwest's SGAT prices that are different that the prices Qwest had been quoting to the Coop. However, the Coop the subject requests did not ask for prices, but rather the costs that Qwest relied upon in substantiating the prices that Qwest had been quoting to the Coop.

Counsel for Qwest recently agreed to produce the relevant sections of its cost study relevant to Qwest's quote preparation fee and the non-recurring installation charge. However, since the hearing is only two weeks away, the Coop asks the Commission to order Qwest to produce this information promptly. The Coop will advise the Commission if Qwest produces the document before the Commission's order on this motion to compel.

Document Request No. 4

The Coop asked Qwest to produce documents "substantiating Qwest's requirement that the Coop purchase an Insurance Policy." In response, Qwest identified "Volume VI 'The Commission Staff Report on the General Terms and conditions of Qwest's Statement of Generally Available Terms (SGAT).'" Qwest should be required to produce that portion of this Staff Report that Qwest claims is relevant to the insurance issue.

Document Request No. 5

The Coop asked Qwest to produce documents "identifying alleged risks to Qwest's network presented by the Coop's Proposed Service." Qwest identified three documents in response to the request, but it did not produce these documents. Qwest should be required to produce that portion of this Staff Report that Qwest claims is relevant to the insurance issue.

Dated this 13th day of January 2002.

Respectfully submitted,

RUBY RANCH INTERNET COOPERATIVE

ASSOCIATION

_______________________________

Carl Oppedahl, Director

c/o Oppedahl & Larson LLP

P.O. Box 5088

Dillon, CO 80435-5088

970-468-6600

carl@rric.net

January 13, 2002

CERTIFICATE OF SERVICE

The undersigned certified that on this 13th day of January, 2002, a true and correct copy of the foregoing PETITIONER'S SECOND MOTION TO COMPEL QWEST TO REPOND TO PETITIONER'S DISCOVERY was sent to the following persons via facsimile and email

Timothy M. Tymkovich

ttymkovich@halehackstaff.com

fax 303-592-8710

and will be served via first-class mail prepaid on January 14, 2002

Timothy M. Tymkovich

Hale Hackstaff Tymkovich & ErkenBrack LLP

1675 Broadway, Suite 2000

Denver, CO 80202

Kris A. Ciccolo

Qwest Services Corporation

1005 17th Street, Suite 200

Denver, CO 80202

______________________________

Carl Oppedahl