Comments of Proposed Decision

The proposed decision of the ALJ Maribeth A. Bushey in this matter was mailed to the parties in accordance with Section 311 of the Public Utilities Code and comments were allowed under Rule 14.3 of the Commission's Rules of Practice and Procedure. Qwest filed comments on the Proposed Decision on
July 19, 2010, and urged the Commission to reject the Proposed Decision in its entirety because, if adopted, the Proposed Decision would "write out of existence the non-discrimination provisions of the Public Utilities Code." Specifically, Qwest argued that switched access is a critical and non-competitive input service and that this Commission as well as the Federal Communications Commission has recognized the potential anti-competitive impact of excessive rates for these "bottleneck" services. In light of this, the Commission in 2007 removed non-cost-based rate elements and imposed a price cap on Competitive Local Exchange Carriers' intrastate access rates. Qwest explained that although the Commission authorized carriers to continue voluntarily to contract with each other for different access charges, the Commission did not exempt those contracts from from Pub. Util. Code § 453, with prohibits discrimination among customers. Qwest concluded that sound public policy against "secretive and unlawfully discriminatory behavior by public utilities" required that the Commission reject the Proposed Decision.

In reply, joint defendants⁷ stated that the Commission considered and rejected Qwest's discrimination arguments in the 2007 decision and that Qwest's attempts to "resurrect" these same arguments in this complaint proceeding amount to "an improper collateral attack" on the 2007 decision. Defendants explained that in the 2007 the Commission adopted a "plain and specific waiver of the general requirement in Pub. Util. Code § 532 that carriers may not depart from tariffed rates" and that the Commission properly relied on the "backstop" of the tariff price cap as a "rational basis" for the "different rates."

MCIMetro Access Transmission Services, LLC, joined in the joint reply comments but also filed its separate reply comments to challenge Qwest's assertions that the intrastate access agreements at issue in this complaint were kept "secret." MCIMetro described the various means by which Qwest has received copies of these agreements since 2004.

⁷ Advanced Telecom, Inc., Arrival Communications, Inc., Blue Casa Communications, Inc., Broadwing Communications, LLC, Budget Prepay, Inc., Bullseye Telecom, Inc., Cox California Telcom, LLC, Granite Telecommunications, LLC, Mpower Communications Corp., Navigator Telecommunications, LLC, Paetec Communications, Inc., Telscape Communications, Inc., TW Telecom of California, L.P., U.S. Telepacific Corp., Utility Telephone, Inc., and XO Communications Services, Inc.