DATE:	August 1, 2013
TO:	Office of Commission Clerk (Cole)
FROM:	Office of the General Counsel (Tan) Office of Telecommunications (Curry, Long)
RE:	Docket No. 090538-TP – Amended Complaint of Qwest Communications Company, LLC against MCImetro Access Transmission Services (d/b/a Verizon Access Transmission Services); XO Communications Services, Inc.; tw telecom of florida, l.p.; Granite Telecommunications, LLC; Broadwing Communications, LLC; Access Point, Inc.; Birch Communications, Inc.; Budget Prepay, Inc.; Bullseye Telecom, Inc.; DeltaCom, Inc.; Ernest Communications, Inc.; Flatel, Inc.; Navigator Telecommunications, LLC; PaeTec Communications, Inc.; STS Telecom, LLC; US LEC of Florida, LLC; Windstream Nuvox, Inc.; and John Does 1 through 50, for unlawful discrimination.
AGENDA:	08/13/13 – Regular Agenda – Decision on Motion for Reconsideration – Oral Argument Requested
COMMISSIONERS ASSIGNED:			Brisé, Edgar, Balbis
PREHEARING OFFICER:			Edgar
CRITICAL DATES:			None
SPECIAL INSTRUCTIONS:			None
FILE NAME AND LOCATION:			S:\PSC\GCL\WP\090538.RCM.DOC

 

 Case Background

The Commission held an administrative hearing on October 23, 2012 on Qwest Communications Company, LLC d/b/a CenturyLink QCC’s (QCC) complaint against a number of Florida competitive local exchange carriers (CLECs); specifically BullsEye Telecom, Inc. (BullsEye), tw telecom, l.p. (TWTC), Ernest Communications, Inc. (Ernest), Flatel, Inc. (Flatel), and Navigator Telecommunications, LLC (Navigator).  During the course of the proceedings, QCC amended its Complaint twice (Amended Complaint) and a number of CLECs were added and then were dismissed from this proceeding due to settlement agreements.[1]

 

QCC provides long distance service in Florida as an interexchange carrier (IXC).  QCC, as an IXC, purchases intrastate switched access service from CLECs, through CLEC published price lists, which the CLECs must publish and may file with the Commission.[2]  Switched access service is necessary for IXCs to provide long distance service.  QCC became aware that the Respondent CLECs entered into alleged secret agreements that included discounts on price list intrastate switched access rates.  QCC believed that the discounts were not reflected on the price lists, and were not offered or furnished to QCC.  The CLECs stated that the agreements with different switched access rates were offered as a result of a settlement agreement with AT&T.  QCC believed it was entitled to the cost differential between the published schedule rates and the agreement rates. 

 

In Order No. PSC-13-0185-FOF-TP, issued May 1, 2013, (Final Order), the Commission determined that it continuously maintains jurisdiction over anticompetitive behavior even though it no longer retains jurisdiction over  Sections 364.08(1) or 364.10(1), F.S. (2010), due to the change in law that went into affect on July 1, 2011.[3]  The Commission also found no evidence of anticompetitive behavior or engagement of unreasonable rate discrimination regarding the price lists of the CLECs.  Finally, the Commission held that QCC failed to demonstrate that it was similarly situated in terms of call volume, traffic and total spend. 

 

QCC, pursuant to Rule 25-22.060, Florida Administrative Code (F.A.C.), filed a Motion for Reconsideration (Motion) and Request for Oral Argument (QCC Request) of  the Final Order.  On May 23, 2013, BullsEye and TWTC filed responses in Opposition to QCC’s Motion.  The respondents ask that QCC’s Motion be denied, asserting that QCC’s arguments are an attempt to re-litigate issues that the Commission properly resolved in the Final Order.  Issue 1 addresses QCC’s Request for Oral Argument, and Issue 2 addresses QCC’s Motion for Reconsideration of the Final Order. 

           

The Commission has jurisdiction pursuant to Rule 25-22.060, F.A.C., and Chapters 364 and 120, Florida Statutes.

Discussion of Issues

Issue 1: 

 Should the Commission grant the Qwest Communications Company, LLC d/b/a CenturyLink QCC’s Request for Oral Argument?

Recommendation: 

 No. The Commission should deny QCC’s Request for Oral Argument on its motion for reconsideration.  Staff believes that the parties have addressed the issues thoroughly and it does not appear that oral argument would assist the Commission in its decision. However, should the Commission, at its discretion, allow oral argument, staff recommends that each party be allowed five minutes to present its arguments. (Tan)

Staff Analysis: 

 Pursuant to Rule 25-22.0022, F.A.C., the granting or denying of a request for oral argument is within the sole discretion of the Commission.  QCC timely filed its Request for Oral Argument concurrently with its Motion.

 In its request, QCC states that oral argument would allow counsel for QCC to respond to Commission questions and assist in understanding the factual basis and legal grounds supporting its Motion.  QCC further argues that there are the complex interrelationship issues which necessitate understanding and evaluating by the Commission.  QCC states that the Commission may have questions regarding the precedential effect of the issues regarding finality of Commission rulings. In the event the Commission grants oral argument, QCC requests ten minutes.

TWTC does not specifically oppose QCC’s Request for Oral Argument, but states that QCC does not appear to have met the requirement to demonstrate that oral argument would aid the Commissioners.  BullsEye argues that the Commission’s Final Order is consistent with its Order on jurisdictional issues and with its prior orders regarding the Commission’s lack of authority to award damages and that QCC is re-arguing issues fully considered and resolved by the Commission.  BullsEye requests that the Commission deny QCC’s request as unwarranted and argues that denial of the request for oral argument will help conserve the resources of the parties and the Commission.  

            Rule 25-22.0022(1), F.A.C., provides that a request for oral argument “shall state with particularity why oral argument would aid” the Commission in understanding and evaluating the issues to be decided. 

Staff does not believe that the additional argument would aid the Commissioners in considering the matters that were addressed at the administrative hearing and the post-hearing briefs.  Staff believes that the parties have addressed the issues thoroughly in the Motion and Responses and does not believe that oral argument would assist the Commission in its decision. Staff recommends that QCC’s Request for Oral Argument be denied. However, should the Commission, at its discretion, allow oral argument, staff recommends that each party be allowed five minutes to present its arguments. 

Issue 2: 

 Should the Commission grant Qwest Communications Company, LLC d/b/a CenturyLink QCC's Motion for Reconsideration of Order No. PSC-13-0185-FOF-TP?

Recommendation: 

 No.  The Commission should deny Qwest Communications Company, LLC d/b/a CenturyLink QCC's Motion for Reconsideration of Order No. PSC-13-0185-FOF-TP.  (Tan, Curry, Long)

Staff Analysis: 

 

Standard of Review

The standard of review for a motion for reconsideration is whether the motion identifies a point of fact or law which was overlooked or which the Commission failed to consider in rendering its Order.  This standard has often been cited by the Commission in considering motions for reconsideration.  The Commission has relied on several Florida cases as precedent. Staff believes a review of some of the cases will provide insight into the limited nature of motions for rehearing (reconsideration). 

The standard of review for a motion for reconsideration is whether the motion identifies a point of fact or law that was overlooked or that 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).  It is not appropriate to reargue matters that have already been considered by the Commission. Sherwood v. State, 111 So. 2d 96 (Fla. 3rd DCA 1959) citing State ex. Rel. Jaytex Realty Co. Green, 105 So. 2d 817 (Fla. 1st DCA 1958).  Furthermore, a motion for reconsideration should not be granted “based upon an arbitrary feeling that a mistake may have been made, but should be based upon specific factual matters set forth in the records and susceptible to review.” Stewart Bonded Warehouse, Inc. v. Bevis, 294 So. 2d at 317.

In Diamond Cab Co. v. King, 146 So. 2d 889 (Fla. 1962), the Court stated:

The purpose of a petition for rehearing is merely to bring to the attention of the trial court, or in this instance, the administrative agency, some point which it 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 . . . . 146 So. 2d 889 at 891.

Furthermore, the Court explained that it is not necessary to respond to every argument and fact raised by each party, stating: 

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. 

It is not the purpose of these remarks to discourage the filing of petitions for rehearing in those cases in which they are justified.  If we have, in fact, inadvertently overlooked something that is controlling in a case we welcome an opportunity to correct the mistake.  But before filing a petition for rehearing a member of the bar should, as objectively as his position as an advocate will permit, carefully analyze the law as it appears in his and his opponent’s brief and the opinion of the court, if one is filed.  It is only in those instances in which this analysis leads to an honest conviction that the court did in fact fail to consider (as distinguished from agreeing with) a question of law or fact which, had it been considered, would require a different decision, that a petition for rehearing should be filed.

146 So. 2d 889 at 891.           

QCC’s Motion for Reconsideration

            In its Motion, QCC is seeking reconsideration of the Commission’s Final Order.  QCC asserts that the Commission reversed decisions made in previous orders, with regards to subject matter jurisdiction and authority to order refunds if the Commission found violations of applicable statutes.[4]  QCC claims that the Commission overlooked or failed to consider several critical points of fact and law:

·        Reversal of a previous decision regarding jurisdiction deprived QCC of the opportunity to argue its case under the law the Commission ultimately determined to apply.

·        Substantial and unrefuted record evidence that the CLECs’ access rates were anticompetitive.

·        Substantial record evidence that QCC was similarly situated to AT&T, and that the CLECs failed to submit contradicting evidence.

·        Terms of BullsEye’s and TWTC’s price list required the CLECs to make the lower switched access rates provided to AT&T available to similarly situated IXCs, such as QCC.

·        Previous determination of Commission authority to order refunds to remedy discriminatory and anticompetitive conduct should have resulted in the Commission affirming said decision in the Final Order.

QCC asserts that it meets the standard of reconsideration, arguing that by denying QCC’s Complaint the Commission overlooked or failed to consider several key points of fact and law.

Commission Authority

            QCC believes that the Commission’s decision in the Final Order reversed a previous decision in the September 28, 2011, Order regarding the Commission’s authority to enforce repealed sections 364.08 and 364.10, F.S. QCC argues that this was in contravention of Rule 25-22.060, F.A.C., requiring a Motion for Reconsideration of a final order be filed within 15 days of the order’s issuance and asserts that no party filed a motion for reconsideration of the September 28, 2011, Order.

            QCC contends that the Commission’s decision in the September 28, 2011, Order was binding on the issue of subject matter jurisdiction.  QCC argues that the Commission previously held that the Commission continued to have jurisdiction over QCC’s claim for conduct prior to July 1, 2011, but notes that the Commission left open the question regarding jurisdiction to enforce QCC’s claims for conduct occurring after July 1, 2011.  QCC argues that the Commission is bound by the doctrine of res judicata, and that the Commission improperly rejected its prior decision in this case. QCC further argues that the Commission’s reversal denied QCC the opportunity to properly present its claims.

Anticompetitive pricing

            QCC believes that the Commission overlooked important, unrefuted evidence in the record in concluding that no anticompetitive conduct occurred.  QCC takes issue with the fact that the Commission did not find evidence of anticompetitive behavior by the CLECs toward QCC.  QCC reiterated its witnesses provided evidence in testimony.  QCC argues that, although the law does not require the Commission to identify every fact or argument that it considered in rending its decision, “the Commission should have and would have reached a different conclusion” if the Commission had considered its evidence.  QCC requests that the Commission grant its Motion and find in favor of QCC that the CLECs’ conduct was unlawfully discriminatory and anticompetitive.

Similarly Situated/Price List

            QCC disagrees with the Commission’s finding that BullsEye and TWTC complied with the provisions of their respective price lists. QCC contends that Florida law imposes a duty to avoid discriminatory and anticompetitive behavior by the CLEC.  Although QCC acknowledges that there are no regulatory requirements in Florida that individual agreements be filed or otherwise made public, QCC believes that the Commission overlooked significant evidence it presented regarding why QCC was prevented from obtaining the discounts for itself.  QCC argues that the Commission failed to consider how BullsEye could determine that QCC was not similarly situated without holding discussions with QCC.  QCC further argues that both BullsEye and TWTC have an obligation to affirmatively make available pricing terms to other similarly situated carriers.  QCC contends that the Commission overlooked the failure of both BullsEye and TWTC to provide QCC the opportunity to prove that it was similarly situated or otherwise negotiate non-discriminatory rates. QCC therefore requests that the Commission reconsider and reverse its decision in the Final Order.

QCC contends that the Commission’s decision on whether QCC was similarly situated is unsupported by the record evidence and contradicts Florida law. QCC further argues that the Commission failed to consider the critical role cost differences play under Florida law when assessing whether differentiated pricing is reasonable, notwithstanding that no statutes, regulations, or orders require a CLEC switched access to be based on cost.

QCC contends that the Commission incorrectly identified the issue in this case to be whether the CLECs’ decision to deviate from the published rates in favor of AT&T was lawful instead of the correct issue of whether the switched access rates  in the CLECs’ price lists were properly set. QCC argues that there is no evidence in the record demonstrating a difference in cost.

QCC believes that the Commission clearly failed to consider QCC’s substantial and uncontested evidence as it relates to 1) determining whether CLEC-provided switched access is a bottleneck service, and 2) that price lists do not vary switched access rates based on the volume of switched access minutes purchased.  QCC requests that the Commission find that there is no relevant basis to distinguish the two carriers for the purposes of determining whether the lower access rate that the Respondent CLECs charged AT&T was discriminatory to QCC.

Damages

            QCC asserts that the Commission reversed its prior decision, arguing that the Commission previously found that it has the authority to order QCC’s refunds to remedy past discrimination and anticompetitive concerns.  QCC contends that the Commission’s decision  in this instance that it no longer had authority to issue refunds based on QCC’s reliance of the repealed statutes was a reversal of its previous decision and, therefore, was a mistake of law that should be reconsidered.

            Finally, QCC argues that reconsideration would be consistent with prior Commission rulings, where the Commission affirmed its authority to award refunds as necessary to address discriminatory and anticompetitive behavior. QCC affirms that the relief it seeks is the difference in the access rates it paid and the lower rates paid by AT&T.  In particular, QCC contends that the Commission has the authority to award such a difference, citing to case law that provides the Commission has the ability to resolve questions of overcharges and award refunds of overcharges. Charlotte County v. General Dev. Util. Inc., 653 So. 2d 1081, 1085 (Fla. 1st DCA 1995) and Florida Power Corp v. Zenith Indus., 377 So. 2d 203 (Fla. 2nd DCA 1979).

BullsEye and TWTC’s Responses to Motion

In their Responses, both BullsEye and TWTC argue that QCC does not meet the standard for reconsideration, asserting that: QCC reargues points already considered by the Commission and that QCC cites to no record evidence or law that was overlooked or not duly considered in the Final Order.  BullsEye and TWTC further argue that QCC does not meet the appropriate standard of review, noting that the Court in Stewart Bonded determined that a motion for reconsideration should not be granted “based upon an arbitrary feeling that a mistake may have been made, but should be based upon specific factual matters set forth in the record and susceptible to review.”[5]  TWTC asserts that re-argument of matters already addressed and considered by the Commission, should not be considered in a Motion for Reconsideration.  BullsEye cites to an earlier filing by QCC, where QCC states that “a motion for reconsideration is not intended as a procedure for reargument of a case merely because the losing party disagrees with the judgment or order, or an excuse to reargue matters that already have been considered by the Commission.”[6]

BullsEye and TWTC argue that the Commission rendered the correct decisions on the following points raised in QCC’s Motion for Reconsideration:

·        The Commission lacks authority to resolve QCC’s complaint under former sections 364.08(1) and 364.04(1) and (2), F.S.

·        QCC failed to demonstrate the CLECs engaged in anticompetitive behavior.

·        The CLECs did not violate their price lists.

·        QCC was not similarly situated to AT&T.

·        The relief sought by QCC does not constitute refunds.

Jurisdiction Due to Change in Law

            BullsEye argues QCC’s attempt to raise the doctrine of res judicata is misguided in that QCC fails to consider the actual language of the Commission’s prior decisions where the Commission made preliminary determinations on its authority to address jurisdiction and QCC’s claims for relief.  TWTC argues that QCC misconstrues the Commission’s decision in the September 28, 2011, Order, asserting that the Commission retained jurisdiction in the complaint because QCC’s allegations also constituted allegations of anti-competitive behavior. TWTC notes that the Commission concluded that “this Commission is vested with subject matter jurisdiction to ensure a fair and effective wholesale market, including oversight of anticompetitive practices, such as predatory pricing among telecommunications service provider.”[7]

BullsEye also asserts that the Final Order is consistent with the preliminary jurisdictional decision, as set forth in the September 28, 2011, Order. BullsEye further notes that the Commission determined that it retains jurisdiction over anti-competitive behavior and notes that the specific issues concerning jurisdiction would be determined post-hearing.  BullsEye and TWTC argue that the doctrine of res judicata does not apply because the Commission did not reverse or contract the holding of the September 28, 2011, Order, and that the doctrine of res judicata should not be considered.

 

Failure to Demonstrate Anticompetitive Behavior

            BullsEye and TWTC assert that QCC failed to provide evidence essential to any claim of anticompetitive conduct during the hearing process. Both BullsEye and TWTC argue that QCC simply disagrees with the Commission’s decision and such re-argument does not meet the standard for reconsideration. BullsEye notes that the Commission, after review of the evidence and testimony presented during the hearing, determined that there was no evidence of anticompetitive behavior by the CLECs toward QCC.

Although QCC argues that the Commission failed to consider QCC witness testimony, TWTC points out that the Commission discussed the issue for over six pages in the Final Order. TWTC disagrees with QCC’s argument that, if the Commission had considered QCC’s witnesses, the Commission would have reached a different conclusion. TWTC notes that the Commission specifically stated that it had considered the testimony of QCC’s witnesses, Weisman and Easton.  BullsEye argues that QCC’s position that the Commission should have given more weight to its witnesses is not a basis for reconsideration. Both BullsEye and TWTC argue that QCC did not identify a single error, oversight, mistake of fact or law made by the Commission in rendering its decision and requests that the Commission deny QCC’s Motion as it relates to the jurisdictional issues resolved in the Final Order.

Similarly Situated to AT&T/Price Lists

            BullsEye argues that the Commission fully considered and resolved any issues regarding whether QCC was similarly situated to AT&T.  BullsEye further argues that QCC failed to identify any information that could alter the Commission’s decision regarding BullsEye’s price list and seeks to re-argue its position. TWTC contends that QCC is asking the Commission to reweigh the evidence and reach a different conclusion than it reached in the Final Order. 

            TWTC notes that it was not named as a respondent to QCC’s Third Claim for Relief. TWTC argues that QCC’s assertion that TWTC is “obligated” to affirmatively offer contract terms to other IXCs is procedurally improper, a violation of TWTC’s due process rights, and is not a basis for reconsideration. TWTC requests that the Commission reject QCC’s Motion as it relates to including TWTC to the Third Claim for Relief.

 BullsEye asserts that QCC admits that the “Commission found, based on evidence in this proceeding, that QCC was not similarly situated to AT&T[.]” BullsEye argues that QCC acknowledged that the Commission duly considered the evidence in the record, and as a result, QCC’s request for reconsideration fails as no point of fact or law was overlooked or not fully considered.  TWTC also asserts that QCC identified no error or oversight in the Commission’s Final Order regarding the Commission’s decision that QCC and AT&T were not similarly situated, that the CLECs did not engage in anticompetitive behavior, and that the CLECs abided by their price lists.  BullsEye and TWTC request that the Commission deny QCC’s Motion and reaffirm that QCC is not similarly situated.

 

 

Damages

 BullsEye notes that the Commission determined in the May 7, 2010, Order that it does not have authority to award damages and held that “to the extent that QCC is requesting monetary damages, we find it appropriate that the Partial Motion to Dismiss Claims for Reparations be granted.” BullsEye also notes that that the Commission determined that it generally has jurisdiction “to remedy regulatory overcharges” through refunds.  Specifically, BullsEye argues that the Commission held that it had the authority to investigate the allegations of the complaint and to determine if any refund was due to QCC.  BullsEye explains that the doctrine of res judicata does not apply to the issue of damages since the Commission properly determined after the hearing that QCC sought damages rather than a refund. 

TWTC contends that the Commission created no conflict between the March 2, 2011, Order and May 7, 2010, Order referenced by QCC in its Motion and the Commission’s conclusion in its Final Order. TWTC notes that the Commission did not conclude in either Order that QCC’s request for relief was appropriate, nor did the Commission affirmatively conclude whether the request was a refund. Rather, TWTC notes that the Commission concluded that it has “broad discretion to take remedial actions, such as refunds” but that it does not have the authority to award damages. Further, BullsEye and TWTC argue that the Commission could not, and did not, reverse or contradict the holding of previous Orders. 

            BullsEye argues that QCC’s position that the Commission has overlooked the legal doctrine of res judicata is incorrect because the Final Order is consistent with the preliminary jurisdictional decision.  BullsEye asserts that all parties and the Commission recognized that the specific jurisdictional issues identified in the September 28, 2011, Order remained opened for resolution in the Final Order. TWTC further asserted that the Commission, consistent with the prior Orders, concluded that it could not provide relief in the form of the refund because QCC was not overcharged from the rates reflected in each of the CLECs’ price lists. BullsEye and TWTC request that the Commission deny QCC’s Motion based on QCC’s failure to identify any error in fact or law in the Commission’s Final Order.

Analysis

Applying the standard of review for motions for reconsideration, staff believes QCC’s Motion fails to cite to any point of fact or law which was overlooked by the Commission in rendering its decision.   Specifically, staff believes QCC’s Motion fails because QCC’s true issue is disagreement with the Commission’s decision in the Final Order. 

QCC argues that the Commission already addressed and determined jurisdiction in a previous Order, rendering the Commission’s determination in the Final Order improper.  The Commission did state in its September 28, 2011, Order that “[f]or carrier actions prior to July 1, 2011, we find continuing jurisdiction under the statutes enacted prior to the Regulatory Reform Act and we continue to have jurisdiction over predatory pricing under the new law enacted by the Regulatory Reform Act.”[8]  It is also true that the Commission determined “[n]onetheless, we find that whether we retain jurisdiction prospectively would be more appropriately addressed during issue identification and examined during the hearing process.”[9]  Jurisdiction was also explicitly identified as an open issue by staff counsel during the Prehearing Conference. [10]  Thus, the question of jurisdiction remained an open issue pending the hearing and parties’ briefs.

 As TWTC notes, the Final Order determined that the Commission retained authority to address allegations in accordance with Section 364.16, F.S.  The September 28, 2011, Order determined that “the Commission is vested with subject matter jurisdiction to ensure a fair and effective wholesale market, including oversight of anticompetitive practices such as predatory pricing among telecommunications service providers.”[11]  Staff believes that the Commission’s Final Order was consistent with its previous decisions. 

QCC asserts that the Commission did not properly consider the testimony of its experts at the hearing, which constitutes a mistake in the Commission’s decision regarding anticompetitive behavior.   As BullsEye and TWTC note, the Commission did consider the testimony of QCC’s witnesses.  In the Final Order, the Commission based its decision on the parties’ testimony, the facts on record, and testimony from all witnesses, including QCC’s witnesses, Weisman and Easton, stating that “based on the testimony of the witnesses and on the fact there are no statutes, Commission regulations, or Commission orders that ever required CLEC switched access rates to be based on cost, nor any that declared CLEC switched access a monopoly service, QCC has failed to demonstrate that it is similarly situated to AT&T.”[12] Therefore, the Commission simply determined that QCC’s evidence did not support its arguments that it was similarly situated to AT&T.  QCC’s assertion that the Commission did not properly acknowledge QCC’s witnesses’ testimonies is not supported by the discussion in the Final Order and thus cannot be the basis for an alleged mistake of fact.

In rendering its decision, staff believes that the Commission considered, either explicitly or implicitly, each of the items that QCC alleges were not addressed.  Furthermore, it is not necessary for the Commission to address every argument and fact raised by each party in the Commission’s Final Order.[13]

Staff believes that QCC improperly raises a new argument that TWTC should be responsible for its price list after the 2011 change in the law.  The Final Order reflected that QCC stipulated that  TWTC was not included on price list issues after the 2011 change in law because the TWTC/AT&T price list expired in November 2008.[14]   Therefore, any additional argument that TWTC should have an obligation to offer a different price to QCC is not a mistake of fact or law by the Commission.

In the May 20, 2010, Order, the Commission held that  it does not have the authority to award damages but does have the authority to order refunds as remedy for overcharges.  The Commission found no anticompetitive behavior by CLECs in this matter, thus refunds were not appropriate.   Furthermore, based on the evidence presented, the Commission found that even if anticompetitive behavior had been determined, QCC’s request for relief was in the nature of damages.  As the Commission has consistently held, it cannot award damages.  Therefore the Commission properly determined that QCC’s request could not be granted.

Conclusion

            For the reasons set forth above, staff recommends that the Commission find QCC’s Motion fails to identify any point of fact or law that was overlooked or that the Commission failed to consider in rendering its Final Order.  Staff believes that QCC is not asking the Commission to look at newly discovered evidence or evidence that the Commission failed to consider in making its determination, but is instead asking the Commission to review and re-weigh evidence, which is not a proper basis for reconsideration. Staff believes that the Commission’s Final Order is consistent with its previous decisions.  Staff further believes QCC has not met the standard of review for its Motion.  Therefore, staff recommends that the Commission deny Qwest Communications Company, LLC d/b/a CenturyLink QCC's Motion for Reconsideration of Order No. PSC-13-0185-FOF-TP.

Issue 3: 

 Should this docket be closed?

Recommendation: 

 The docket should be closed after the time for filing an appeal has run.  (Tan)

Staff Analysis: 

 The docket should be closed 32 days after issuance of the order, to allow the time for filing an appeal to run.