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

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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 17, 2010 Vikie Bailey-Goggins Oregon Public Utility Commission 550 Capitol St., NE Suite 215 Salem, OR Re: IC Dear Ms. Bailey-Goggins: Enclosed for filing in the above entitled matter please find an original and (5) copies of Qwest Corporation s Complaint for Enforcement of Interconnection Agreement, and its Executive Summary of Complaint for Enforcement of Interconnection Agreement and Relief Requested, along with a certificate of service. If you have any questions, please do not hesitate to contact me. Sincerely, Carla M. Butler CMB: Enclosure

2 BEFORE THE PUBLIC UTILITY COMMISSION OF OREGON IC In the Matter of QWEST CORPORATION, v. Complainant, LEVEL 3 COMMUNICATIONS, LLC, Defendant, Complaint for Enforcement of Interconnection Agreement QWEST CORPORATION S COMPLAINT FOR ENFORCEMENT OF INTERCONNECTION AGREEMENT Qwest Corporation ( Qwest ), pursuant to OAR (2), hereby files its Complaint for Enforcement of Interconnection Agreement ( Complaint ) against Level 3 Communications, LLC ( Level 3 ). INTRODUCTION This dispute concerns Level 3 s obligation to pay Qwest for transport facilities that Qwest provides to carry Level 3 s Virtual NXX traffic. Virtual NXX (or VNXX ) traffic is interexchange traffic that arises when Level 3 assigns Oregon telephone numbers to Internet service providers located outside the caller s local calling area, and often outside of the state of Oregon. Level 3 engages in VNXX telephone number assignment in order to make long distance calls appear to be local calls. In Order No in Docket ARB 671, this Commission banned VNXX telephone number assignment in Oregon. See also Order No in Docket UM 1058 (VNXX Investigation). In an order issued March 14, 2007 in the interconnection arbitration between Qwest and Level 3 in Docket ARB 665 ( Order No ), the Commission established a limited exception to the ban on VNXX that allowed Level 3 to carry only VNXX-routed ISP-bound 1

3 traffic in Oregon subject to certain conditions. In particular, the Commission ruled that Level 3 must pay Qwest s tariffed rates for transport of VNXX traffic from points in Oregon defined by Level 3 witnesses to be its primary and secondary POIs to Level 3 s Media Gateway in Seattle. A Primary POI, in Level 3 s parlance, is what is more generally known as a point of interconnection, the point at which two interconnecting networks meet. Level 3 defined a Secondary POI to be the distant endpoint of Qwest-provided Direct Trunked Transport ( DTT ) that Level 3 paid for based on relative use under the terms of the Parties interconnection agreement ( ICA ). Under Order No , Level 3 was not permitted to engage in VNXX unless it paid for the transport from the primary and secondary POIs to the Media Gateway at Qwest s tariffed rates. The Order presupposed that Level 3 was already paying the lower TELRIC rates for the DTT, and directed Level 3 to pay an additional amount that adjusted the total rate paid up to Qwest s tariffed rates. Qwest has properly charged Level 3 at the tariffed rates for transport Qwest provides from the primary and secondary POIs. Level 3 has refused to pay Qwest for transport at private line rates as this Commission directed. According to Level 3, it need only pay for direct trunked transport from a secondary POI if the secondary POI is located in a local calling area that does not already have a point of interconnection. However, nothing in either Order No or the ICA support Level 3 s claims that it is not required to pay for transport at tariffed rates for transport that begins within a local calling area at a secondary POI and then routes to a primary POI in the same local calling area. Qwest brings this complaint to obtain (1) a declaratory ruling that Level 3 must pay Qwest s tariffed rates for all of the transport of VNXX traffic that Qwest provides and (2) an order directing Level 3 to pay past-due amounts. 2

4 COMPLAINT I. PARTIES 1. Qwest Corporation is a Colorado corporation with its principal place of business at 1801 California St, Denver, Colorado, Qwest is a telecommunications utility regulated by the Commission, with its Oregon principal place of business in Portland. 2. Level 3 Communications, LLC is a Delaware limited liability company with its principal place of business at 1025 Eldorado Boulevard, Broomfield, Colorado, Level 3 is a telecommunications utility regulated by the Commission. II. FACTUAL ALLEGATIONS A. Good Faith Attempt to Resolve Pursuant to OAR (2)(a) 3. Pursuant to OAR (2)(a), Qwest has attempted to resolve this dispute in good faith. 4. On or about August 1, 2007, Qwest began billing Level 3 for facilities provided pursuant to the terms of the Parties Interconnection Agreement (the ICA ). Level 3 began disputing certain amounts being billed and claimed it was not required to pay these amounts under the terms of the ICA. In early 2008, the Parties began meeting periodically in an effort to work toward resolution of the disputes. On or about February 26, 2009, Qwest and Level 3 entered into a tolling agreement to toll the statutes of limitation applicable to this dispute. On or about June 2, 2009, Qwest and Level 3 entered into a second tolling agreement that remains in effect. 5. Despite efforts at negotiating a resolution, the Parties have been unable to resolve their dispute. By letter dated May 7, 2010, Qwest notified Level 3 pursuant to OAR (3)(a) of its intent to file a complaint to enforce the ICA. See Exhibit A attached hereto. 3

5 B. Statement of Pertinent Facts 6. On June 3, 2005, Level 3 filed a petition with the Commission requesting arbitration of an interconnection agreement with Qwest pursuant to Sections 251 and 252 of the Telecommunications Act of On March 14, 2007, in Docket No. ARB 665, the Commission entered Order No resolving the disputed issues in the Arbitration by adopting, with modifications, the Arbitrator s Decision issued February 13, 2007 (collectively, the Arbitrator s Decision ). 7. On or about April 19, 2007, the Parties entered into the ICA implementing Order No The ICA was approved by the Commission in Order No entered on June 18, The Agreement became effective on June 18, The ICA provides terms and conditions governing the interconnection of the Parties networks for the purpose of exchanging specified types of traffic. Level 3 and Qwest are currently interconnected and exchanging traffic at several points of interconnection ( POIs ) in Oregon. In testimony submitted in the arbitration, Level 3 defined two types of points of interconnection. Level 3 defined primary POIs to be situations in which Level 3 brought its own network facilities to collocation in a Qwest central office or in which Level 3 purchased special access to a technically-feasible point of interconnection. Level 3 defined secondary POIs to be locations where Level 3 is paying for Direct End Office Trunks ( DEOTs ) from a Primary POI location to a Qwest End Office that may be in a different local calling area. 1 In its testimony, Level 3 affirmed that Direct End Office Trunks were the same as Direct Trunked Transport. Id. See Arbitrator s Decision at pp See Supplemental Technical Testimony of Kenneth L. Wilson On Behalf of Level (3) Communications, LLC, Docket ARB 665, filed May 10, 2006, pp

6 9. The ICA provides for the exchange of ISP-bound traffic and permits the exchange of VNXX ISP traffic under certain conditions. And Section governs the exchange of VNXX ISP traffic. Specifically, Section provides: Pursuant to Order No , CLEC may make VNXX number assignments only for the purpose of assigning numbers to ISP Customers to facilitate the exchange of dial-up ISP- Bound traffic. CLEC shall compensate Qwest for paying all of the costs associated with transporting VNXX-routed ISP-Bound traffic from its primary and secondary POIs in Oregon to its media gateway. The compensation paid by CLEC to Qwest shall be based on the transport of non-telric rates set forth in applicable Qwest tariffs. Under Section , Level 3 must compensate Qwest for the facilities used to transport VNXX-routed ISP-Bound traffic from Level 3 s Primary and Secondary POIs to its Media Gateway. The rates applicable to such facilities are Qwest s tariffed special access rates. 10. Section is based upon the Commission s grant of a limited exception to its general prohibition against the use of VNXX arrangements in Oregon. Order No states in pertinent part: Based on the record in this case, the Arbitrator recommended that the Commission grant a limited exception to its ban on VNXX. *** The Arbitrator s proposal to allow Level 3 to offer VNXX numbers includes the following conditions: *** 2. Level 3 must assume responsibility for paying all of the costs associated with transporting VNXX-routed ISP-bound traffic from its primary and secondary points of interconnection in Oregon to its media gateway. The Arbitrator reasoned that, because this traffic is both interexchange and interstate in nature, the compensation paid by Level 3 to Qwest should be based on the transport rates set forth in applicable Qwest tariffs, rather than the TELRIC rates proposed by Level 3. *** Order No , at pp The ICA presupposes that Level 3 would already be paying for transport provided from Qwest at Total Element Long Run Incremental Cost ( TELRIC ) rates. Specifically, 5

7 Sections and required Level 3 to pay for entrance facilities and direct trunked transport at TELRIC rates. The requirement in Order No that Level 3 pay Qwest s tariff rates for the transport of VNXX ISP traffic is an overlay on this requirement. Accordingly, when Qwest bills Level 3 for transport used to carry VNXX traffic, Qwest credits Level 3 for the TELRIC amounts that Level 3 is required to pay under Sections and of the ICA. 12. Under Order No and Section of the ICA, Level 3 bears the legal responsibility to pay Qwest for the transport of VNXX-routed ISP-bound traffic regardless whether the traffic originates within a local calling area in which a Primary POI is located or whether it originates in another local calling area. Qwest s position is based on the language of Order No , the language of the ICA, and Level 3 s own testimony in the arbitration proceeding, which acknowledges that a secondary POI is simply one end of a DTT connection. 13. There is no dispute that Level 3 must pay special access rates for transport facilities used to transport VNXX-routed ISP-bound traffic between Level 3 s Primary and Secondary POIs and its Media Gateway. The Parties disagree as to what transport facilities are encompassed by this requirement. 14. It is Qwest s position that Level 3 must pay Qwest s tariffed special access rates for all facilities used to transport VNXX-routed ISP-bound traffic from Level 3 s primary and secondary POIs to Level 3 s Media Gateway regardless of whether these facilities are classified as Direct Trunk Transport or Entrance Facilities under other sections of the ICA. Qwest contends that Level 3 represented to the Commission in its testimony that Secondary POIs were located in the end offices at which DTT paid for by Level 3 based on relative use terminated and therefore that DTT constitutes a portion of the facilities used to transport VNXX-routed ISP 6

8 traffic from Level 3 s secondary POIs to Level 3 s Media Gateways. Qwest has not attempted to bill Level 3 both special access and TELRIC rates for the same facilities. 15. Level 3 has taken the position that Section requires it only to pay special access rates on a portion of the facilities used to transport VNXX-routed ISP traffic. Specifically, Level 3 contends it is only required to pay special access rates from one point of interconnection in each Oregon local calling area to the Media Gateways. This position is not supported either by the testimony of Level 3 s witnesses at the arbitration hearing or by Order No III. TESTIMONY IN SUPPORT OF STATEMENTS OF FACTS AND LAW UNDER OAR (2)(D) 16. The primary issue in this case is fundamentally a legal question based on Order No and the ICA. The support for Qwest s position in this matter is testimony already in the arbitration record on which Order No is based (in particular, the testimony of Level 3 witness Kenneth Wilson). 17. Qwest relies primarily on the following in support of its complaint: 1. Order No , In the Matter of Qwest Corporation s Petition for Arbitration of Interconnection Rates, Terms, Conditions and Related Arrangements with Universal Telecommunications, Inc, Docket ARB 671, pp. 4-7, App. A, 7-16 (OPUC, April 19, 2006). 2. Order No , In the Matter of Level 3 Communications, LLC Petition for Arbitration of an Interconnection Agreement with Qwest Corporation, Pursuant to Section 252(b) of the Telecommunications Act, Docket ARB 665, pp. 3-8, App. A, pp. 2-5, 13-20, (OPUC, March 14, 2007). 3. Supplemental Technical Testimony of Kenneth L. Wilson, Docket ARB 665, May 10, 2006, pp The provisions of the current ICA between Qwest and Level 3, in particular Sections and The Affidavit of Larry Brotherson, attached as Exhibit B. 7

9 IV. STATEMENT OF RELIEF REQUESTED Qwest requests that the Commission enter an order (1) declaring that Level 3 is required to pay tariffed private line rates for all transport provided by Qwest from primary and secondary POIs to Level 3 s Media Gateway and (2) requiring Level 3 to compensate Qwest for the transport provided and billed by Qwest to date that Level 3 has disputed. The remedies that Qwest seeks in this complaint are consistent with the dispute resolution provisions in the ICA. DATED: May 17, 2010 Respectfully submitted QWEST CORPORATION By Alex M. Duarte, OSB No QWEST 421 SW Oak Street, Room 810 Portland, OR (503) (503) (facsimile) Alex.Duarte@qwest.com Thomas M. Dethlefs Qwest 1801 California St, 10th Floor Denver, CO (303) (303) (facsimile) Thomas.Dethlefs@Qwest.com Attorneys for Qwest Corporation 8

16 BEFORE THE PUBLIC UTILITY COMMISSION OF OREGON IC In the Matter of QWEST CORPORATION, v. Complainant, LEVEL 3 COMMUNICATIONS, LLC, Defendant, Complaint for Enforcement of Interconnection Agreement QWEST CORPORATION S EXECUTIVE SUMMARY OF COMPLAINT FOR ENFORCEMENT OF INTERCONNECTION AGREEMENT AND RELIEF REQUESTED Pursuant to OAR (2)(g), Qwest Corporation ( Qwest ) hereby submits this executive summary of its Complaint for Enforcement of Interconnection Agreement with Level 3 Communications, LLC ( Level 3 ), including a summary of the claim and the relief requested. This dispute concerns Level 3 s obligation to pay Qwest for transport of Virtual NXX ( VNXX ) traffic. Qwest and Level 3 are party to an interconnection agreement that resulted from an interconnection arbitration decided by the Commission in 2007 in docket ARB 665. Prior to Docket ARB 665, the Commission had, in a separate proceeding (Docket ARB 671), banned the use of VNXX in its entirety in Oregon. See Order No See also Order No in Docket UM 1058 (VNXX Investigation). In its March 14, 2007 decision in the arbitration between Qwest and Level 3, Docket ARB 665 ( Order No ), the Commission established a limited exception that allowed Level 3 to carry only VNXX-routed ISP-bound traffic in Oregon subject to the specific condition that Level 3 pay Qwest s tariffed rates for transport from primary and secondary POIs in Oregon to Level 3 s Media Gateway in 1

17 Seattle. Level 3 witness Ken Wilson had defined primary and secondary POIs in his prefiled testimony. A Primary POI, in Level 3 s parlance, is what is more generally known as a point of interconnection : the point at which the networks of two interconnecting carriers are connected to each other. Level 3 defined a Secondary POI to be the endpoint of Direct Trunked Transport ( DTT ) paid for by Level 3 at TELRIC rates based on the relative use factor terms of the interconnection agreement ( ICA ) between the parties. Under Order No , Level 3 was not permitted to engage in VNXX unless it paid for the transport from the primary and secondary POIs to its Media Gateway at Qwest s tariffed rates. Qwest has properly charged Level 3 at the tariffed rates for transport from the primary and secondary POIs. Level has refused to pay Qwest for transport from certain of the secondary POIs at private line rates as ordered by the Commission. The amount that Level 3 has disputed and withheld exceeds $2.3 million with interest. Level 3 erroneously asserts that it is not required to pay for transport at tariffed rates for transport that begins within a local calling area at a secondary POI and then routes to a primary POI in the same local calling area before leaving the state of Oregon. Level 3 s position is not consistent with either Order No or the ICA. 2

18 Accordingly, Qwest requests that the Commission enter an order (1) declaring that Level 3 is required to pay tariffed private line rates for all transport provided by Qwest from primary and secondary POIs to Level 3 s Media Gateway and (2) requiring Level 3 to pay Qwest for the transport provided and billed by Qwest to date, plus interest. DATED: May 17, 2010 Alex M. Duarte, OSB No Qwest 421 SW Oak Street, Suite 810 Portland, Oregon (503) (503) (facsimile) Alex.Duarte@qwest.com Thomas M. Dethlefs Qwest 1801 California St, 10 th Floor Denver, CO (303) (303) (facsimile) Thomas.Dethlefs@Qwest.com Attorneys for Qwest Corporation 3

19 CERTIFICATE OF SERVICE IC I hereby certify that on the 17 th day of May, 2010, a true and correct copy of the foregoing QWEST CORPORATION S COMPLAINT FOR ENFORCEMENT OF INTERCONNECTION AGREEMENT, and its EXECUTIVE SUMMARY OF COMPLAINT FOR ENFORCEMENT OF INTERCONNECTION AGREEMENT AND RELIEF REQUESTED the above entitled docket, was served upon the following persons via means of transmission to the addresses listed. Lisa Rackner, Esq. 520 SW Sixth, Suite 830 Portland, OR lisa@mcd-law.com Scott Porter, Esq. Level 3 Communications 100 S. Cincinnati, Suite 1200 Tulsa, OK scott.porter@level3.com Rick Thayer Level 3 Communications 1025 Eldorado Blvd. Broomfield, CO rick.thayer@level3.com Thomas Dethlefs, Esq. Qwest Corporation 1801 California St., 10 th Floor Denver, CO thomas.dethlefs@qwest.com DATED this 17 th day of May, QWEST CORPORATION By: ALEX M. DUARTE, OSB No SW Oak Street, Suite 810 Portland, OR Telephone: Facsimile: alex.duarte@qwest.com Attorney for Qwest Corporation

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

May 20, Cheryl Walker Oregon Public Utility Commission 550 Capitol St., NE Suite 215 Salem, OR Re: UCB 34 Preferred Choice Insurance 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 20, 2008 Cheryl Walker