Control Number : 41158
Item Number: 28
Addendum StartPage : 0
PUC DOCKET NO. 41158
COMPLAINT OF SOUTHWESTERN
§
BELL TELEPHONE COMPANY D/B/A §
AT&T TEXAS AGAINST ZEUS
§
WIRELESS LLC FOR RESOLUTION
§
OF POST-INTERCONNECTION
§
DISPUTE
.
.®;,
PUBLIC UTILITY COMMISSION
OF TEXAS
ORDER NO. 5
MEMORIALIZING EXPEDITED RELIEF HEARING AND DENYING EXPEDITED
RELIEF
1.
Memorializing Expedited Relief Hearing
On January 23, 2013, Southwestern Bell Telephone Company d/b/a AT&T Texas
(AT&T) filed a complaint for resolution of a post-interconnection dispute with Zeus Wireless,
LLC (Zeus) pursuant to P.U.C. PROC. R. 21.121 through 21.129, and a conditional request for a
partial expedited ruling.
AT&T alleged that Zeus breached the parties' interconnection
agreement (ICA) by sending landline-originated traffic, in addition to wireless-originated traffic,
for termination by AT&T.
The complaint sought compensation for the alleged landline-
originated traffic, but also sought an expedited ruling that Zeus had breached the ICA, so that
AT&T could disconnect service to Zeus.
On February 5, 2013, the Arbitrators issued Order No. 1 setting a date for a hearing on
AT&T's request for expedited relief. The subject matter to be addressed at the hearing was to
include: ( 1) whether the conditions of P.U.C. PROC. R. 21.127 had been met such that an
expedited ruling on the portion of the subject matter identified by AT&T (whether Zeus is in
breach of the ICA) was warranted; (2) if an expedited ruling was warranted, whether Zeus was in
breach of the ICA; and (3) an appropriate procedural schedule for determination of all issues
remaining after any expedited ruling.
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The hearing on expedited relief was conducted on February 19, 2013. The Arbitrators
heard argument on whether an expedited ruling was warranted.
Based on statements within
AT&T's argument that its evidence on breach was also relevant to whether the expedited ruling
was warranted, the Arbitrators withheld ruling on the first issue and also took evidence from both
AT&T and Zeus on the second issue of whether Zeus was in breach of the ICA.
AT&T presented prefiled written testimony from Mark Neinast and Scott McPhee. In
addition, Mr. Neinast testified on cross-examination regarding a traffic study that he performed
of traffic sent by Zeus to AT&T (Tr. at 75-82). Mr. Neinast identified four categories of traffic
for study purposes: RBOC/ILEC, All other LERG Categories, CLEC and Wireless (Exhibit
AT&T TX-6). Mr. Neinast testified that Zeus was not supposed to send any landline traffic (Tr.
at77) and that although traffic identified as RBOC/ILEC had been reduced significantly, Zeus
continued to send some landline traffic.
Zeus countered with testimony from its founder, Nathan Nelson. Mr. Nelson testified
about the LERG and its classification of carriers as either IOCs, RBOCs, CLECs, wireless
carriers, wireless resellers and "various other elements" (Tr. at 88-89).
He also testified that
Zeus's "routing engine" looks at the OCN of traffic it receives and routes it to AT&T if the
originating telephone number meets the criteria for wireless. If it doesn't meet the criteria, Mr.
Nelson testified that Zeus rejects the call based on the OCN in the LERG (Tr. at 89). Mr. Nelson
also testified that, after receiving notice from AT&T, Zeus took steps to cut-off RBOC and IOC
traffic Jr. at 105). Zeus also represented at the hearing that it would stop sending CLEC traffic
during the pendency of the proceeding for the purpose of "trying to resolve this proceeding" (Tr.
at 105).'
AT&T represents in a letter to the Arbitrators filed on February 28, 2013 that Zeus continues to send CLEC
traffic and that an expedited ruling is still needed. Zeus moved to strike the letter on March 4, 2013, arguing that the
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On rebuttal, AT&T witness Scott McPhee testified that, under the terms of the ICA, each
party to the agreement was obligated to comply with the terms of the agreement and that AT&T
was under no obligation to counsel Zeus on how to comply with the ICA (Tr. at 137-139). Mr.
McPhee also admitted that the provision of the ICA that Zeus is alleged to have breached does
not use the term "CMRS" (Tr. at 141-142).
At the conclusion of the hearing, the Arbitrators ordered the submission of post-hearing
briefs as agreed by the parties and indicated that establishment of a procedural schedule for
remaining issues would follow the Arbitrators' ruling on the issues heard at the hearing.
II.
Analysis
P.U.C. PROC. R. 21.127(a) provides, in part, as follows:
This section establishes procedures pursuant to which a party who files a
complaint to initiate a dispute resolution under this subchapter may request an
expedited ruling when the dispute directly affects the ability of a party to provide
uninterrupted service to its customers or precludes the provisioning of any
service, functionality, or network element.
The presiding officer has the
discretion to determine whether the resolution of the complaint may be expedited
based on the complexity of the issues or other factors deemed relevant.2
In its complaint filed January 23, 2013, AT&T proffered the following explanation for
why expedited relief was warranted:
Expedited treatment is warranted because if AT&T Texas is restrained from
disconnecting service to Zeus and Zeus continues to pass landline-originated
traffic and/or refuses to pay access charges, AT&T Texas will continue to be
required to terminate access traffic to Zeus at no cost to Zeus thereby increasing
the risk that AT&T Texas may never recover the full amount that Zeus owes.
Additionally Zeus' ability to obtain terminating access without paying for it is not
letter attempted to introduce additional evidence into the record. The Arbitrators have not introduced the letter into
evidence and therefore need not strike the letter. Neither Zeus's representation that it will stop sending CLEC
during the pendency of the proceeding, nor any of AT&T's representations in its letter of February 28, 2013, affect
the Arbitrators' decision in this order.
Emphasis added.
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only a violation of AT&T Texas' access tariffs, it is discriminatory as to other
carriers who comply with the terms of the access tariff by paying for the
termination of access traffic.
However, in its argument at the expedited relief hearing and in its post-hearing brief,
AT&T presents quite a different explanation for why expedited relief is warranted:
..., AT&T Texas initiated a proceeding that presented the same issue that Zeus
would have presented if AT&T Texas had terminated the ICA first, in which case
Zeus would undoubtedly have come to the Commission seeking an expedited
ruling forcing AT&T Texas to resume service. The Commission should treat the
instant case on an expedited basis because it presents the same situation - AT&T
Texas intends to terminate service to Zeus forthwith, based on Zeus' breach of the
ICA, unless the Arbitrators find that Zeus has proven it did not breach the ICA
and that AT&T Texas therefore cannot lawfully terminate the ICA.
This situation fully satisfies P.U.C. Proc. Rule 21.127, which provides for an
expedited ruling in cases where "the dispute directly affects the ability of a party
to provide uninterrupted service to its customers or precludes the provisioning of
any service, functionality, or network element." The resolution of the question
whether Zeus has breached the ICA will determine whether Zeus will continue to
"provide uninterrupted service" to its customers, because Zeus' service to its
customers consists almost exclusively of sending traffic to AT&T Texas for
termination via its interconnection agreement with AT&T Texas.
Ultimately, the Arbitrators find neither explanation sufficient to warrant an expedited
ruling. To begin with, AT&T Texas did not present any evidence at the hearing relevant to its
first argument about the "risk that AT&T Texas may never recover the full amount that Zeus
owes." With respect to AT&T's second argument, P.U.C. PROC. R. 21.127(a) does provide the
"party who files a complaint" with an opportunity for an expedited ruling where the dispute may
affect the ability of "a party," rather than "the party" or "the complainant," to provide service.
However, AT&T's assertion that it is requesting an expedited ruling in order to protect the
interests of Zeus, when Zeus itself asserts that an expedited ruling is detrimental to its interests,
seems disingenuous. Under AT&T's interpretation, the rule becomes a sword for a complainant
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threatening to terminate service, rather than a shield for a complainant seeking to continue
providing service. It does not appear to the Arbitrators that this is the purpose of the rule.
III.
Conclusion
The Arbitrators find that an expedited ruling is not warranted at this time.
The
Arbitrators therefore will not rule at this time on the issue of Zeus's alleged breach of the ICA.
The parties are ordered to submit a joint proposed procedural schedule on or before
Friday, March 8, 2013. If the parties cannot agree to a joint procedural schedule, the parties
should submit individual procedural schedules. In light of the fact that the parties have now had
an initial opportunity to conduct some discovery and to present evidence and cross-examine
witnesses at the expedited relief hearing, the Arbitrators request that the parties present schedules
that provide for an efficient and streamlined resolution of the breach and compensation issues.
The schedule should provide a reasonable amount of time for Zeus to conduct and present the
call study on CLEC traffic that Zeus mentioned in testimony and post-hearing briefing, but
should otherwise move briskly.
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SIGNED AT AUSTIN, TEXAS on the 5th day of March, 2013
PUBLIC UTILITY COMMISSION OF TEXAS
ADRIAN EISSLER
ARBITRATOR
FRED GOODWIN
ARBITRATOR
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