I. INTRODUCTION

In Decision (D.) 10-07-030 (or "Decision"), we dismissed the complaint filed by Qwest Communications Company, LLC ("Qwest") against twenty-one California competitive local exchange carriers ("CLECs" or "Defendants").¹ The Decision found that Qwest had failed to state a cause of action upon which relief could be granted.

Qwest's complaint had alleged that the Defendants had subjected Qwest to unjust and unreasonable rate discrimination in connection with the provision of intrastate switched access service. Specifically, Qwest's complaint raised three claims for relief.

(1) Rate Discrimination - Defendants have subjected Qwest to discriminatory treatment with respect to rates for intrastate switched access service provided to similarly situated interexchange carriers ("IXCs") by not making off-tariff rates available to Qwest (citing Public Utilities Code Sections 453, 532, and 734, and General Order 96-B).² (First Amended Complaint, p. 33, ¶ 12.)

(2) Failure to Abide by Tariffs or File ICBs - Defendants entered individual-case-basis ("ICB") agreements with some IXCs, but not Qwest, with terms and conditions that deviated from their tariffed rates for intrastate switched access services and did not file the ICB agreements with the Commission (citing Section 453 and 532 and General Orders 96-A, 96-B, General Rule 8.5.6 and Telecommunications Industry Rules 4, 7.1(8), and 8.2.) (First Amended Complaint, p. 33, ¶ 15.)

(3) Failure to Provide Customer-Specific Contract Terms to Similarly-Situated Customers in Violation with Tariffs - Some defendants violated terms in their tariff that stated that if they entered into ICB agreements they would (1) make the same terms available to other customers on a non-discriminatory basis, and/or (2) attach a summary of the agreement to their tariff, and/or (3) file the agreement and seek Commission approval (citing Section 532, General Orders 96-A, 96-B, General Rule 8.2.1.) (First Amended Complaint, pp. 34-35, ¶ 19.)

In dismissing Qwest's complaint, the Decision found that Qwest alleges that the Defendants' voluntarily contracts for intrastate access service at rates different from the tariffed rates violated sections 532 and 453. (D.10-07-030, p. 12, [Finding of Fact 3].) The Decision concluded that in D.07-12-020³ the Commission had authorized carriers to offer intrastate access services in voluntary contracts at rates different from the valid tariffed rates without further ratemaking review. (D.10-07-030, p. 12 [Conclusion of Law 2].) The Decision further concluded that the Commission had imposed no restriction on the voluntary contractual rates, and concluded Qwest's allegation of contracts for intrastate service at rates different from tariffed rates did not constitute a violation of California law or Commission regulation. (D.10-07-030, p. 12 [Conclusion of Law 4].)

Qwest filed a timely application for rehearing of D.10-07-030.⁴ Qwest alleges that the Commission: (1) misconstrued Qwest's complaint regarding its discrimination argument; (2) unlawfully disregarded the mandates of the Public Utilities Code (in particular section 453); (3) violated basic principles of due process; (4) incorrectly dismissed claims that predate 2007 Access Charge Decision; and (5) issued a decision incompatible with sound public policy. Qwest also requests oral argument under Rule 16.3 of the Commission's Rules of Practice and Procedure.

MCI Metro Access Transmission Services, L.L.C., Advanced Telecom, Inc., Arrival Communications, Inc., Blue Casa Communications, Inc., Broadwing Communications, LLC, Budget PrePay, Inc., BullsEye Telecom, Inc., Cox California Telecom, LLC. Granite Telecommunications, LLC, Mpower Communications Corp.,

Navigator Telecommunications, LLC, PAETEC Communications, Inc., Telescape Communications Inc., tw telecom of california, lp., U.S. TelePacific Corp., Utility Telephone, Inc., and XO Communications Services, Inc filed a Joint Response to Qwest's rehearing application.

¹ Qwest's August 1, 2008 complaint named seven defendants: MCI Metro Access Transmission Services, L.L.C.; XO Communications Services, Inc.; tw telecom of California, lp.; Granite Telecommunications, LLC; Advanced Telecom, Inc.; Level 3 Communications; and Cox California Telecom, LLC. On April 15, 2009, Qwest filed its First Amended Complaint and added seventeen additional defendants: Access One, Inc.; ACN Communications Services, Inc.; Arrival Communications, Inc.; Blue Casa Communications, Inc.; Broadwing Communications, LLC; Budget PrePay, Inc.; BullsEye Telecom, Inc.; Ernest Communications, Inc.; Mpower Communications Corp.; Navigator Telecommunications, LLC; nii Communications, Ltd.; Pacific Centrex Services, Inc.; PAETEC Communications, Inc.; Telekenex; Telescape Communications, Inc.; U.S. TelePacific Corp.; and Utility Telephone, Inc. Qwest is no longer pursuing claims again three of the twenty-four named defendants, Pacific Centrex Services, Inc., Level 3 Communications and ACN Communications Services, Inc.

² Unless otherwise specified, subsequent section references are to the Public Utilities Code.

³ Final Opinion Modifying Intrastate Access Charges ("2007 Access Charge Decision")
[D.07-12-020] (2007) ___ Cal.P.U.C.3d ___.

⁴ Qwest's rehearing application was filed with a motion for leave to file confidential materials under seal.