May 20, Cheryl Walker Oregon Public Utility Commission 550 Capitol St., NE Suite 215 Salem, OR Re: UCB 34 Preferred Choice Insurance

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Jodie Hopkins
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Qwest 421 Southwest Oak Street Suite 810 Portland, Oregon 97204 Telephone: 503-242-5420 Facsimile: 503-242-8589 e-mail: carla.butler@qwest.com Carla M.

1 Qwest 421 Southwest Oak Street Suite 810 Portland, Oregon Telephone: Facsimile: Carla M. Butler Lead Paralegal May 20, 2008 Cheryl Walker Oregon Public Utility Commission 550 Capitol St., NE Suite 215 Salem, OR Re: UCB 34 Preferred Choice Insurance Dear Ms. Walker: Enclosed please find an original and two (2) copies of Qwest Corporation s Motion to Dismiss for the above entitled docket, along with a certificate of service. If you have any questions, please don t hesitate to give me a call. Sincerely, Carla M. Butler CMB: Enclosure cc: Service List L:\Oregon\Executive\Butler\Complaints\UCB 34 Transmittal Ltr.doc

2 CERTIFICATE OF SERVICE UCB 34 I hereby certify that on the 20 th day of May, 2008, I served the foregoing QWEST CORPORATION S MOTION TO DISMISS in the above entitled docket on the following person via U.S. Mail, by mailing a correct copy to him in a sealed envelope, with postage prepaid, addressed to him at his business address shown below, and deposited in the U.S. post office at Portland, Oregon. Preferred Choice Insurance Attn: Mr. Robin Woolhiser 163 SE 3 rd Street, Suite 2 Bend, OR DATED this 20 th day of May, QWEST CORPORATION By: CARLA M. BUTLER 421 SW Oak Street, Suite 810 Portland, OR Telephone: Facsimile: carla.butler@qwest.com Paralegal for Qwest Corporation

3 BEFORE THE PUBLIC UTILITY COMMISSION OF OREGON UCB 34 PREFERRED CHOICE INSURANCE, ) ) Complainant, ) QWEST CORPORATION S ) MOTION TO DISMISS v. ) ) QWEST CORPORATION, ) ) Defendant. ) ) Defendant Qwest Corporation ( Qwest ) hereby moves to dismiss the Formal Complaint filed by Preferred Choice Insurance ( Complainant ) against Qwest. PERTINENT BACKGROUND, FACTS AND APPLICABLE TERMS Qwest s account notes for the Complainant s account F 763B indicate the following series of events: Complainant s purchase of Qwest Choice Business Prime package and applicable terms Qwest completed the porting of Complainant s service on April 2, 2007, under primary account number of (541) The service includes seven additional lines. The account was established under the terms and conditions of Qwest s Choice Business Prime package, which applies a 20% discount when a customer agrees to subscribe for a specific term. Complainant agreed to maintain a 36-month term (until March 27, 2010) in exchange for the 20% discount. The terms and conditions of Qwest s Choice Business Prime package very clearly state that disconnection of service prior to the end of the term (in this case March 27, 2010) will result in an early termination fee ( ETF ) of $ per line. Acceptance of Qwest s service, and continued use of Qwest s service, constitutes acceptance of the terms and conditions of such service. In 1 Qwest 421 SW Oak St., Suite 810 Portland OR 97204

4 addition, the ETF is appropriate because it is part of the customer s benefit of the bargain-- a lower rate (discount) in exchange for the customer s commitment for a fixed period of service. Further, the applicability of the ETF, which is a standard term and condition in Qwest s and other telecommunications carrier s service offerings, and is subject to tariffs and price lists on file with the Commission and thus allowed by law and the Commission s rules, is set forth in Qwest s Welcome letter for the Qwest Choice Business Prime package. A copy of a sample Welcome letter for the Qwest Choice Business Prime package is attached as Exhibit 1 to this motion and is incorporated by this reference. The ETF is also clearly stated on Qwest s initial billing statement sent to the Complainant on or about April 28, A copy of Qwest s initial billing statement sent to the Complainant on or about April 28, 2007 is attached as Exhibit 2 to this motion and is incorporated by this reference. The ETF is again stated on Qwest s subsequent billing statements sent to Complainant. A copy of Qwest s billing statement sent to the Complainant on or about December 28, 2007 is attached as Exhibit 3 to this motion and is incorporated by this reference. Qwest allows customers thirty (30) days from the date of service installation, or service upgrade, to dispute the terms and conditions of an agreement, and to be released from the agreement without penalty. See Qwest s OPUC Exchange and Network Services Price List, A.4(j), a copy of which is attached as Exhibit 5 to this motion and is incorporated by this reference. Tariffs and price lists are filed with the Oregon Public Utility Commission, and under Oregon utility law and the filed-rate doctrine (or filed-tariff doctrine), they have the force and effect of law and are binding on Qwest and the customer in the utility/customer relationship for regulated telecommunications services. See e.g., ORS Qwest 421 SW Oak St., Suite 810 Portland OR 97204

5 Qwest provided Complainant with additional Welcome to Qwest discount(s) that provided credit for the non-recurring charge, as well as the cost of each line for two months. The agreement for these discounts require the Complainant to maintain its service for one year. See Exhibit 2, p. 3. Finally, releasing Complainant from the terms of its Qwest Choice Business Prime package without paying the ETF, as agreed in exchange for a 20% discount, would discriminate in favor of Complainant and against all other similarly-situated customers who must pay, and have paid, ETFs for early terminations. Qwest is prohibited by Oregon law from discriminating in favor of a customer and against other similarly-situated customers. See ORS and ORS Complainant s disconnection of Qwest service and applicable ETFs applied The Complainant disconnected its service effective March 2, Qwest billing statement issued March 10, 2008, in the amount of $3,296.82, includes the ETF of $2,400.00, or $300 for eight (8) lines. In addition, Qwest assessed Complainant s account $ for the Welcome to Qwest discount. See Exhibit 4. On April 2, 2008, Complainant spoke with Qwest manager, Sue Galliger. The account charges and Qwest Choice Business Prime package agreement terms were explained to Complainant, and the charges sustained. Qwest explained to Complainant that there is no requirement to have a written, signed agreement. Indeed, Complainant, who bears the burden of proof for its complaint, does not cite to any requirement under Oregon law or Qwest s tariffs or price lists filed with the Commission that the Complainant must have signed a written contract in order to be obligated for the terms and conditions of an ETF. The applicable tariff or price list in this matter is Qwest Corporation Price List, Exchange and Network Services, Section A 4 (a) and (h), which is attached as Exhibit 5 and is incorporated by this reference. 3 Qwest 421 SW Oak St., Suite 810 Portland OR 97204

6 Complainant s unsubstantiated out of service claims Complainant also contends that it switched its service to another carrier due to repair issues. However, Qwest denies such allegations, and states that it did not receive any repair claims for the following numbers: (541) , (541) , (541) , (541) , (541) , (541) , and (541) Although Qwest did receive the following repair claims for one of Complainant s lines, telephone number (541) , Qwest s records show that there was no trouble found or that the service tested fine on Qwest s side of the demarcation (DMARC) point, which is where Qwest s obligation ends. Specifically, Qwest s notes indicate as follows: December 14, out of service- Qwest dispatched a tech December 14, The repair claim was closed with no trouble found. December 21, out of service- Qwest dispatched a tech December 21, The tech moved the service to a new F1 and F2 pair. February 1, out of service. Qwest dispatched a tech February 2, The service tested fine to the DMARC. February 4, out of service. Qwest dispatched a tech February 4, The service tested fine to the DMARC. February 28, out of service. Qwest dispatched a tech February 28, The service tested fine to the DMARC. Thus, although Complainant made several out of service claims, there was no trouble found, or the service tested fine on Qwest s side of the demarcation point. As such, none of these unsubstantiated out of service services claims constitutes cause for termination of the agreement for Qwest s Choice Business Prime package. CONCLUSION In sum, Complainant has not shown that a signed agreement is required for Qwest to enforce the terms and conditions of Qwest s Choice Business Prime package, including the ETF of 20% 4 Qwest 421 SW Oak St., Suite 810 Portland OR 97204

7 discount for a 36-month term. Allowing Complainant to breach the terms and conditions of its package with Qwest would violate the filed-tariff doctrine and would be discriminatory in violation of Oregon law. In addition, the unsubstantiated out of service claims regarding one of Complainant s lines, which did not reveal any trouble on Qwest s side of the demarcation point, does not warrant cause for terminating Complainant s agreement with Qwest without liability for the applicable ETFs. Finally, given the ample disclosures to Complainant, it goes without saying that there is no merit to Complainant s request to fine Qwest for deceptive practices. 1 For these reasons, Qwest respectfully submits that the Commission should dismiss the Complainant s Formal Complaint in its entirety. DATED this 20th day of May, 2008 Respectfully submitted, By: Alex M. Duarte, OSB No Qwest Corporate Counsel 421 SW Oak Street, Suite 810 Portland, OR (facsimile) alex.duarte@qwest.com Attorney for Qwest Corporation 1 Likewise, the lack of merit to Complainant s complaint is amply shown in that it asks the Commission to pull [Qwest s] right to do business in Oregon State, and states that this is just modified slaming (sic). Not only is this nothing more than hyperbole, but Complainant cites to no legal or factual basis for such outlandish claims for relief. Rather, the complaint appears to be simply the result of a business customer who simply wants to get out of the deal that it struck with Qwest when it agreed to purchase its discounted and term-specific package, but without living up to the benefit of the bargain. 5 Qwest 421 SW Oak St., Suite 810 Portland OR 97204

May 17, Vikie Bailey-Goggins Oregon Public Utility Commission 550 Capitol St., NE Suite 215 Salem, OR Re: IC. Dear Ms.

May 17, Vikie Bailey-Goggins Oregon Public Utility Commission 550 Capitol St., NE Suite 215 Salem, OR Re: IC. Dear Ms. Qwest 421 Southwest Oak Street Suite 810 Portland, Oregon 97204 Telephone: 503-242-5420 Facsimile: 503-242-8589 e-mail: carla.butler@qwest.com Carla M. Butler Lead Paralegal May 17, 2010 Vikie Bailey-Goggins