DATE:	February 19, 2009
TO:	Office of Commission Clerk (Cole)
FROM:	Division of Regulatory Compliance (Barrett) Office of the General Counsel (Tan)
RE:	Docket No. 070699-TP – Petition by Intrado Communications, Inc. for arbitration of certain rates, terms, and conditions for interconnection and related arrangements with Embarq Florida, Inc., pursuant to Section 252(b) of the Communications Act of 1934, as amended, and Section 364.162, F.S.
AGENDA:	03/03/09 – Regular Agenda – Motion for Reconsideration – Oral Argument Requested
COMMISSIONERS ASSIGNED:			All Commissioners
PREHEARING OFFICER:			Edgar
CRITICAL DATES:			None
SPECIAL INSTRUCTIONS:			Place immediately before Docket No. 070736-TP.
FILE NAME AND LOCATION:			S:\PSC\RCP\WP\070699_Recon.RCM.DOC

 

 Case Background

On November 27, 2007, Intrado Communications, Inc. (Intrado Comm) filed its Petition for Arbitration of certain rates, terms, and conditions for interconnection and related arrangements with Embarq Florida, Inc. (Embarq), pursuant to Section 252(b) of the Communications Act of 1934, as amended[1] (Act), and Section 364.162, Florida Statutes (F.S.).  An evidentiary hearing was held July 9, 2008.

 

On December 3, 2008, the Florida Public Service Commission (Commission, or FPSC) issued its Final Order in this matter, Order No. PSC-08-0799-FOF-TP.  On December 18, 2008, Intrado Comm filed a Motion for Reconsideration (Motion) and a Request for Oral Argument on the Motion for Reconsideration (Request). 

 

On December 29, 2008, Embarq filed its Responses in Opposition to the Intrado Comm pleadings (Response to Request and Response to Motion, respectively).  Issue 1 addresses the Intrado Comm Request for Oral Argument, and Issue 2 addresses the Motion for Reconsideration.

 

The Commission is vested with jurisdiction over these matters pursuant to the provisions of Chapters 364 and 120, Florida Statutes. 

 

Discussion of Issues

Issue 1: 

 Should the Commission grant Intrado Comm’s Request for Oral Argument?

Recommendation: 

  No.  The Commission should deny Intrado Comm’s Request for Oral Argument.  (Tan, Barrett)

Staff Analysis: 

 Rule 25-22.0022(3), Florida Administrative Code (F.A.C.), states that granting or denying a request for oral argument is within the sole discretion of the Commission or the Prehearing Officer, whichever presides over the matter to be argued.  The respective arguments are summarized below. 

Intrado Comm’s Request for Oral Argument

Intrado Comm believes the Commission “overlooked critical issues of fact and law and misunderstood the law and facts it did consider.” (Request at 3)  Intrado Comm claims that the Commission has not heard argument on the “threshold issue,[2]” nor has it heard argument relating to its obligation to arbitrate the parties’ disputes pursuant to state law.  Although it presented information on the “threshold issue” in its brief, Intrado Comm states that pre-imposed page limitations hampered its ability to fully discuss this critical legal issue. (Request at 3)  Intrado Comm seeks the opportunity to “enhance the Commission’s understanding of the issues at hand.” (Request at 2)

Embarq’s Response to Request

Embarq’s Response in Opposition to Oral Argument states that oral argument is unnecessary.  Embarq believes the record evidence and post-hearing briefs “provided more than a sufficient basis for the Commission’s [Final] Order.” (Embarq Response to Request at 1)  In addition, both parties made opening presentations, and participated in cross-examining the opposing witnesses in order to set forth the facts and respective positions for the Commission. (Embarq Response to Request at 2)  The Company acknowledges that Rule 25-22.0022, F.A.C., gives the Commission the latitude to grant a request for oral argument, but only when “the request for oral argument  . . . would aid the Commissioners in understanding and evaluating the issues to be decided.” (Embarq Response to Request at 2)  Embarq believes in this instance, Intrado Comm’s request should be denied.

Analysis

In pertinent part, Rule 25-22.0022(1), F.A.C., sets forth the rationale for granting a request for oral argument:  The moving party should

state with particularity why oral argument would aid the Commissioners . . . in understanding and evaluating the issues to be decided, and the amount of time requested for oral argument.

 

Staff is not swayed by the notion that additional argument “would aid the Commissioners” in considering the matters that were fleshed out in the hearing and the briefs, and memorialized in Order No. PSC-08-0799-FOF-TP.  Staff agrees with Embarq on this point. 

Staff does not believe that it would be beneficial for the Commission to hear from the parties.  However, should the Commission, in its discretion, allow oral argument, staff recommends that each party be allowed 5 minutes to present its arguments.

Conclusion    

            Staff recommends that Intrado Comm’s Request for Oral Argument be denied.

 

 

 

Issue 2: 

 Should the Commission grant Intrado Comm’s Motion for Reconsideration of Order No. PSC-08-0799-FOF-TP?

Recommendation: 

 No.  The Commission should deny Intrado Comm’s Motion for Reconsideration of Order No. PSC-08-0799-FOF-TP. (Tan, Barrett) 

Staff Analysis: 

  

Intrado Comm’s Motion for Reconsideration

Intrado Comm asserts that “the Commission has overlooked, misunderstood, and inaccurately interpreted the governing federal law and the relevant facts on the threshold legal issue that . . . [Order No. PSC-08-0799-FOF-TP] decides.”  (Motion at 3)  Intrado Comm claims that the Commission

·        entirely overlooks Intrado Comm’s request for arbitration under Florida law;

·        entirely overlooks half of the relevant definition from 47 U.S.C. § 153(47)(A);

·        runs afoul of FCC precedent in interpreting 47 U.S.C. § 153(47)(B); and

·        misunderstood the record evidence, which resulted in an “erroneous decision.”

(Motion at 3-4)  In addition, Intrado Comm claims new factual information has come to light that supports its Motion for Reconsideration.[3]  Intrado Comm has entered into three contracts to provide 911/E-911 services in Florida.  The Company states that it “cannot” provide service to these or any other customers in Florida without a section 251(c) interconnection agreement.  Intrado Comm believes the Commission erred in its conclusion that “the parties may negotiate a commercial agreement pursuant to §251(a).” (Order No. PSC-08-0799-FOF-TP at 8; Motion at 5)

Arbitration pursuant to Florida Law

            Intrado Comm believes the Commission simply failed to consider state law in its Order.  In doing so, it “missed the opportunity  . . . to ensure that Florida citizens receive the benefits of a competitive 911/E911 services industry.”  (Motion at 22)  The Company states that its original pleading (to request arbitration) was clear in that it sought relief pursuant to state and federal law.  However, in rendering its decision, the Commission relied upon portions of 47 U.S.C. § 153(47) that are not found in Florida law.  (Motion at 23)    In pertinent part, Section 364.161(1) states that “parties . . . may petition the commission to arbitrate the dispute and the commission shall make a determination within 120 days.” (Motion at 23)(Emphasis in original)  Intrado Comm states a three-part litmus test must be met before either party can engage the arbitration procedures pursuant to Florida law:

·        First, a Florida-certified local exchange company must have received a request to unbundle “all of its network features, functions, and capabilities, including access to signaling databases, systems and routing processes;”

·        Second, the above-described request must have come from any other telecommunications provider; and

·        Third, the parties must demonstrate that they have been unable to reach a resolution within 60 days.

(Motion at 24-25)  Intrado Comm believes it has satisfied these requirements and that “Florida law [has] triggered the Commission’s unmitigated duty to arbitrate the parties’ disputes.” (Motion at 25)  In its Motion, Intrado Comm states that in other cases, this Commission has asserted its state-law authority over interconnection matters. (See footnotes 72-81, Motion at 26-29)

Consideration of 47 U.S.C. § 153(47)

            Order No. PSC-08-0799-FOF-TP states that Intrado Comm is not entitled to arbitration under Section 251(c) of the Act since it will not be providing “local exchange service.”  Intrado Comm believes that when the Commission considered the definition in 47 U.S.C. § 153(47), it only considered a portion of the full definition shown below:

SEC. 3. [47 U.S.C. 153] DEFINITIONS.

(47) TELEPHONE EXCHANGE SERVICE.--The term ''telephone exchange service'' means (A) service within a telephone exchange, or within a connected system of telephone exchanges within the same exchange area operated to furnish to subscribers intercommunicating service of the character ordinarily furnished by a single exchange, and which is covered by the exchange service charge, or (B) comparable service provided through a system of switches, transmission equipment, or other facilities (or combination thereof) by which a subscriber can originate and terminate a telecommunications service.

 

Intrado Comm believes the word “or” means that it must only satisfy only one of the “parts” from this definition.  The Company contends that the Commission “misconstrued section 153(47)(B) and altogether failed to consider the definition of telephone exchange service under section 153(47)(A).” (Motion at 7)  Intrado Comm believes the Commission erred and contends that it satisfies both parts of the definition.

            Regarding section 153(47)(A), Intrado Comm believes its service provides subscribers the ability to intercommunicate, and the Commission’s Order is silent on this matter.  Intrado Comm contends that the Commission restricted its analysis to the “B-part” of 47 U.S.C. § 153(47), wherein it stated that “Intrado Comm’s service is incapable of originating calls and is therefore not a telephone exchange service.” (Motion at 7)  However, Intrado Comm argues that the Commission failed to acknowledge that a PSAP served by Intrado Comm could “hookflash” to obtain a dial tone in order to originate a bridged call to a third party – essentially connecting the originating caller to the 3^rd party by using more modern technology than what other providers currently offer. (Motion at 7-8) 

Intrado Comm notes that its service compares favorably with a scenario the FCC faced in 2001.  In its Provision of Directory Listing information under the Telecommunications Act of 1934, as Amended, 16 FCC Rcd 2736 (“DA Call Completion Order”), the FCC examined the service directory assistance providers offered – specifically whether call completion services were providing a “telephone exchange service” pursuant to 47 U.S.C. § 153(47).  Intrado Comm states:

The FCC held that the call-completion service allows a “local caller to connect to another local telephone subscriber and, in that process, through a system of either owned or resold switches, enables the caller to originate and terminate a call.”  It was irrelevant that the originated call did not start with an ordinary telephone call.  The same should be said of the fact that Intrado Comm does not originate calls in the form of an ordinary telephone call. (Motion at 9)

In addition, Intrado Comm argues that the Commission failed to consider what the FCC’s Advanced Services Order said regarding “telephone exchange service.”  Intrado Comm claims that the Commission erred because it took such a narrow posture in considering 47 U.S.C. § 153(47), whereas the Advanced Services Order advocates a broader view. (Motion at 13-14)  The Company asserts that “nothing in 153(47)(B) supports the conclusion that the meaning of ‘originate a call’ was locked in and keyed to the ways in which older technologies have operated.” (Motion at 13-14)  Intrado Comm states that its product offering “bridges the gap between the inferior, antiquated telephone exchange services of the past and those of the future.” (Motion at 12)  Intrado Comm contends that the decision rendered in Order No. PSC-08-0799-FOF-TP hampers it in providing safe and accurate 911/E911 service to the citizens of Florida.

The Commission misunderstood evidence

            Intrado Comm asserts that the Commission erred in its belief that a Commercial Agreement under §251(a) is a viable alternative for Intrado Comm.  Intrado Comm claims its witness Hicks addressed this topic, and its brief did as well. (Motion 20-22)  The Company believes it needs to negotiate pursuant to §251(c) in order to obtain interconnection with Embarq that is “at least equal in quality to that provided to itself, an affiliate, or [to] other carriers.” (Motion at 20)  According to Intrado Comm, testimony that explained this viewpoint was not adequately considered by the Commission.

Embarq’s Response to Motion

            Embarq states that the law is clear regarding the standard of review for a motion for reconsideration.  The Commission has consistently looked at whether such a motion identifies a point of fact or law that the Commission overlooked or failed to consider in rendering its order.[4] (Embarq Response to Motion at 1-2)  Embarq believes that Intrado Comm’s Motion fails to meet this standard since it offers no new evidence and merely reiterates the assertions it made in its post-hearing briefs. (Embarq Response to Motion at 1-2)  According to Embarq, Intrado Comm has presented no valid grounds for the Commission to reconsider Order No. PSC-08-0799-FOF-TP. (Embarq Response to Motion at 1)  Embarq counters the Intrado Comm assertions, and states that

·        the Commission did not overlook evidence and argument, even though it may not have explicitly addressed every aspect of Intrado Comm’s case.  Embarq believes that the Commission evaluated everything, but only discussed the most relevant evidence and argument; (Embarq Response to Motion at 2)

·         Intrado Comm’s Motion offers the same arguments as those proffered in it’s post-hearing brief.  In its Motion and brief, Intrado Comm argues that the FCC’s DA Call Completion Order and its Advanced Services Order are applicable to the instant case.  By repeating these assertions in the manner it has, Embarq believes Intrado Comm fails to raise additional or new arguments.  The same can be said for Intrado Comm’s argument regarding 47 U.S.C. § 153(47); and (Embarq Response to Motion at 2-10)

·        the Commission properly found that the services that Intrado Comm provides do not give their customers (PSAPs) the ability to originate calls, or “intercommunicate,” with end users dialing 9-1-1. (Embarq Response to Motion at 6)  According to Embarq, certain arguments Intrado Comm made in its brief and reiterated in its Motion were in conflict with its own price list.[5]  Specifically, the price list describes the “hook flash” option as a “Manual Transfer” whereas the Motion describes the “hook flash” method as a means to originate a call. (Intrado Comm Motion at 8; Embarq Response to Motion at 6)   Embarq believes this is significant because “end user originated calls [to 911] are terminated to PSAPs served by Intrado, which means that Intrado [Comm’s] services meet the terminating aspects of intercommunication.”  However, Intrado Comm’s price list does not indicate that Intrado Comm services can be used to originate calls, “because they cannot,” according to Embarq. (Embarq Response to Motion at 6) 

Embarq reiterates that the Commission should not reconsider Order No. PSC-08-0799-FOF-TP, and notes that two other state commissions have reached conclusions that are similar to Florida’s.[6]  Embarq believes reconsideration is not warranted because

·        nothing that Intrado Comm alleges in its Motion is “new evidence.”  The mere existence of the “new” contracts “does nothing to alter the evidence on which the Commission based its decision . . ..” (Embarq Response to Motion at 12-13); and 

·        at no time during the negotiations for interconnection did Intrado Comm “state or even suggest” that it intended the negotiations to be pursuant to Florida law. (Embarq Response to Motion at 14)  Embarq believes it would be improper to “start over” and delve into the applicability of state statutes at this juncture. (Id. at 15)  

Analysis

The Commission has looked on numerous occasions[7] to the Stewart Bonded Warehouse, Inc. v. Bevis and to the Diamond Cab Co. v. King cases for guidance in reviewing motions for reconsideration.  Relevant portions of these cases are summarized below:

·        In Stewart Bonded Warehouse, Inc. v. Bevis, the primary consideration was “whether the motion identifies a point of fact or law which was overlooked or which the Commission failed to consider in rendering its order.”  See, Stewart Bonded Warehouse, Inc. v. Bevis, 294 So. 2d 315 (Fla. 1974); Diamond Cab Co. v. King, 146 So. 2d 889 (Fla. 1962); and Pingree v. Quaintance, 394 So. 2d 161 (Fla. 1st DCA 1981). 

·        In the Diamond Cab case, the court stated, in part:  “The purpose of a petition for rehearing is merely to bring . . . [out] some point which . . . [the Commission] overlooked or failed to consider when it rendered its order in the first instance . . . It is not intended as a procedure for re-arguing the whole case merely because the losing party disagrees with the judgment or order . . ..”  (Diamond Cab, 146 So. 2d at 891.)

The Commission has also looked to State ex. rel. Jaytex Realty Co. v. Green (Jaytex) to consider the scope of its review for motions for reconsideration, and whether it is necessary for a respondent to answer every argument and fact raised by each party.  In Jaytex, the court found

the sole and only purpose of a petition for rehearing is to call to the attention of the court some fact, precedent or rule of law which the court has overlooked in rendering its decision . . . (Jaytex, 105 So. 2d at 818.) 

 . . .

An opinion should never be prepared merely to refute the arguments advanced by the unsuccessful litigant.  For this reason it frequently occurs that an opinion will discuss some phases of a case, but will not mention others.  Counsel should not from this fact draw the conclusion that the matters not discussed were not considered.  (Id. at 819)

In considering the standard of review for motions for reconsideration, staff believes the Intrado Comm Motion falls short.  Specifically, staff believes the Motion fails because:

·        The information in Intrado Comm’s Motion was reargument of facts previously considered.  Reargument in a Motion for Reconsideration is procedurally improper; 

·        Intrado Comm never made a demonstrative “state law argument” in the case it built through testimony and exhibits.  In this proceeding, both parties cited more to “federal law” than to “state law” to support for their respective positions.  Although Order No. PSC-08-0799-FOF-TP relied on federal law, staff believes it is erroneous to claim that the Commission “failed to consider” the state law.  Because state law was not in conflict with any aspect of the federal law that the Commission cited, a separate argument was not tendered.  Staff believes state law was fully considered by the Commission in its Final Order, and a motion for reconsideration is not the proper avenue to pursue new arguments; 

·        A decision the Prehearing officer imposed (by setting the page limits for briefs) did not adversely impair Intrado Comm in briefing this case.  The decision regarding page limits for briefs applied to both parties, and both adhered to it when post-hearing briefs were filed.  Either party could have sought timely relief in this regard, but did not.  Staff believes Intrado Comm’s Motion is not the avenue to seek relief after the fact; and

·        The recent contractual arrangements that Intrado Comm touts as “new” are immaterial to the Commission’s finding in Order No. PSC-08-0799-FOF-TP.  Staff does not believe this Order addressed whether Intrado Comm could establish contracts to provide emergency services in Florida, nor was this Order predicated on the existence or lack of any such contracts.

Staff believes Intrado Comm has not met the standard of review for its Motion.  Therefore, staff recommends that the Commission deny Intrado Comm’s Motion for Reconsideration.

Conclusion   

            Staff recommends that the Commission deny Intrado Comm’s Motion for Reconsideration.

 

 

Issue 3: 

 Should this docket be closed?

Recommendation: 

  Yes.  If the Commission approves staff’s recommendations in Issues 1 and 2, this Docket should be closed. (Tan, Barrett)

Staff Analysis: 

 If the Commission approves staff’s recommendations in Issues 1 and 2, this Docket should be closed.