I1II I Ill I I II II II Item Number: 44

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1 1111I I1 II I I1IIIIII I I Control Number: I1II I Ill I I II II II Item Number: 44 Addendum StartPage: 0

2 DOCKET NO SUGAR LAND TELEPHONE COMPANY S 3 COMPLAINT AND REQUEST FOR - 1 BEFo984rh f TV 1 23 P1 1 2: 49 EXPEDITED RULING AGAINST FOCAL, 0 PUBLIC UTWE GQMY %W&, 0 H COMMUNICATIONS CORPORATION 9 OF TEmsF1LING CLERK TO THE HONORABLE COMMISSION: SUGAR LAND S RESPONSE TO FOCAL S MOTION TO ADDRESS THRESHOLD ISSUE Sugar Land Telephone Company ( Sugar Land ) provides the following response to Focal Communications Corporation s ( Focal ) Motion to Address Threshold Issue, and in response states as follows: Focal asks the Arbitrators to address a threshold issue in the event its Motion to Abate is denied. (Focal Motion at p. 4.) The question which Focal poses as a threshold issue is the following: Is VOIP traffic subject to access compensation under current FCC regulations? Id. Focal asserts that some or part of the traffic in dispute may be VOIP, and/or may be declared by its customer to be VOIP, without defining what is or is not VOIP for purposes of this motion. Focal then asserts that if access does apply to VOIP traffic, then the only issue is (1) the amount of compensation due Sugar Land and (2) whether Focal is liable for the charges on this traffic. Sugar Land urges the Arbitrators to deny this motion for the following reasons: 1. The question posed does not address the ultimate issue - whether the traf$c in dispute is the type of traffic the parties have agreed to exchange under their Interconnection Anreem ent. The issue for decision in this proceeding is whether the traffic in dispute can be exchanged pursuant to the Focal/Sugar Land Interconnection Agreement. As Sugar Land has detailed in its Amended Complaint, the traffic in dispute is outside the parties Interconnection Agreement. The

3 Interconnection Agreements provide that Focal may exchange only traffic which is telephone exchange service or exchange access originated on Focal s network, not traffic generated by third parties and handed to Focal for termination. (Interconnection Agreement at Attachment 12, r( 1.2.) The Interconnection Agreement contains no provision that Sugar Land must accept Focal s customer s declaration in determining the jurisdictional nature of the traffic delivered. In fact, the Interconnection Agreement has express provisions that govern how the jurisdictional nature of the traffic will be determined. (See Interconnection Agreement at Attachment 12, Section 2, and Attachment 4, Section ) Focal asserts that because its customers have expressly warranted to Focal that the traffic is VOP traffic that is exempt from access charges, the traffic can be terminated as Local Traffic under the agreement. As addressed in Sugar Land s Response to the Intervention of Transcom Enhanced Services, LLC, filed February 12, 2004, at page 3, Focal s agreement with a third party cannot change the provisions of the Interconnection Agreement. Based on the data available to Sugac Land, the disputed traffic originates at a telephone number outside Focal s network, and is therefore outside the parties Interconnection Agreement. Moreover, Focal has not submitted its contracts for review, nor tied the disputed traffic to any such contract. Focal has provided Sugar Land s counsel with a redacted copy of the Master Service Agreement, but it has not filed this document or produced it in discovery by which the representations attributed to are assumed to have been provided under oath. Rather, Focal simply states that these miscellaneous pages are representative of contracts with the customers whose traffic is in dispute. Examination of the document itself reveals these pages are incomplete, many The first page of the document indicates the document has 30 pages. Pages 1-4 are marked Page 1 of 30, Page 2 of30, etc. Page 5 then begins with different pagination which states only Page 5. Pages 5 through 15 are provided with redactions; then the document skips to page 23. Pages 24 through 30 are not provided. Exhibits A, B, C, and D -2-

4 pages are wholly missing, it is undated, and could have been entered into subsequent to the traffic in dispute. Moreover, parts of these contracts are executed by Focal Communications Corporation or Focal Financial Services, Inc. None bear the name Focal Communications Corporation of Texas, the party to the Sugar Land Interconnection Agreement. There is no representation that these pages are complete or that they are the terms that govern all the traffic in dispute, and Focal has resisted all discovery that would allow such facts to be ascertained. The forwarding of this collection of miscellaneous pages from other Focal entities contracts to Sugar Land s counsel, outside the discovery process and without filing them in the docket, does not establish Focal s assertions that all of the traffic in dispute is VOIP, or even that its customers claim the traffic in dispute to be VOIP. In addition, there are numerous provisions in these pages that indicate the traffic originated as interexchange toll calling by these third-party customers, or otherwise outside the Interconnection Agreement, is being terminated to Focal under this so-called representative Master Agreement. Because these pages were provided under Focal s counsel s claims that they are confidential, the substantive nature of these provisions are not recited here. 2. The stated threshold issue is whollv hvpotheticul. Focal seeks a ruling on a question that, at this point, is wholly hypothetical. Focal asserts the traffic in dispute is VOIP traffic. However, Focal has not shown, or pled, that the disputed traffic, even if VOW, originates on its network and is therefore subject to the parties Interconnection Agreement. The VOIP issue is relevant only if Focal first shows that VOIP traffic (which, by the Index, is Call Detail Records ) are not provided. One page of an Exhibit E is provided. The title on this page differs from the title of this Exhibit in the Index. It is unclear whether Exhibit E is complete. Exhibit E is apparently from a different agreement, entered into between the customer and Focal Financial Services, Inc. There is no reference between it and the preceding or subsequent pages. Exhibit F is not provided. The next page is Page 1 of 4 of a First Amendment to Agreement, followed by a Page 1 of 4 in a different type set. The last two pages are titled Transition Agreement. -3-

5 arising from other networks (such as Transcorn) is subject to the parties Interconnection Agreement, and that the disputed traffic is VOIP. As yet, Focal has resisted all discovery that would enable the parties to examine whether the traffic is in fact VOIP. In addition, Focal offers no definition of VOIP y for purposes of this threshold question. While resisting all discovery as to whether the traffic is or is not VOIP, and resisting all efforts to define what is or is not VOIP, 2 Focal asks the Arbitrators to decide what is, at this point, the hypothetical question - that if the traffic were some undefined type of VOIP traffic, would such undefined VOIP traffic be subject to access charges? As the Arbitrators are likely aware, there are questions pending before the FCC as to various forms of traffic, defined in various ways, that may use some form of internet protocol in the transport of that call. As yet in this proceeding, Focal has not defined the nature of the traffic at issue, but only states that its customers claim the traffic to be VOIP. These declarations remain secret, including the definition used by these customers to define what traffic is subject to their VOIP declaration. From the response given by Focal quoted in footnote 1, supra, Focal allows its customers to self-define VOIP. Assuming that this declaration also has rate consequences for the Focal customer, such secret declarations can be given no weight at all. Thus, at this point, in order to address this threshold question, the Arbitrators would have to address every conceivable form of traffic that a self-interested customer might declare to be VOIP, to address the threshold issue Focal poses. As is obvious, this is not an efficient manner of proceeding, nor will it narrow the issues. See Focal s Response to Sugar Land s 1 RFI No. 1: Since there are many types of VoIP, it may not be possible to apply a single over-arching definition to all of the various service architectures. One of the questions before the FCC is how to define VoIP in a meaningful manner and Focal awaits further direction from the FCC before attempting to define VoIP. Focal further states that its ESP customers warrant that the traffic they deliver to Focal is only VoIP traffic. Apparently, VoIP is whatever Focal s customers declare it to be, knowing that if that characterization is given, Focal will represent the traffic to Sugar Land as local and not subject to switched access. -4-

6 In summary, Focal seeks a decision on a wholly hypothetical question which will not resolve any matter at issue in this controversy. In addition, because the term VOIP is not defined, the issue is not framed in such a way as to provide for a meaningful decision. 3. There is no procedure for addressing a threshold issue under PUC Proc. R The procedural process for dispute resolution under PUC Proc. R contemplates that a hearing will be conducted, then a draft arbitration award will be presented to the Commission. This process requires a hearing to be initiated within 50 days of a complaint being filed. There is no procedure under this rule to consider a threshold issue as requested by Focal. Nor is there a procedure to then apply such a decision in the subsequent fact hearing to determine the nature of the traffic in dispute. As these questions show, Focal s motion puts the cart before the horse. The first step is to establish whether the disputed traffic is subject to termination as Local Traffic under the parties Interconnection Agreement. Focal s proposal to use the limited time frame in which this dispute must be decided to address a hypothetical question is not an efficient or practical means of narrowing and resolving this dispute. Sugar Land urges that the Motion be denied. Respectfully submitted, MCGINNIS, LOCHRIDGE & KILGORE, L.L.P Capitol Center 919 Congress Avenue Austin, Texas Tel: (512) Fax: (512) I By: wi$zlzb- Brook Bennett Brown State Bar No.: ATTORNEYS FOR SUGAR LAND TELEPHONE COMPANY -5-

7 CERTIFICATE OF SER VICE I hereby certify that a true and correct copy of the above and foregoing was served via telecopy to the following counsel of record on this 23rd day of February, 2004: Ms. Diane Barlow 919 Congress Ave., Suite 1060 Austin, TX VIA TELECOPY (512) dbarlow@phonelaw.com In addition, a copy has been provided by to Mr. Scott McCullough, counsel for Transcorn, by fax to Mr. McCullough, at (512) Brook Bennett Brown -6-