BEFORE THE MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS 600 North Robert Street St. Paul, MN

Transcription

1 BEFORE THE MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS 00 North Robert Street St. Paul, MN. 101 FOR THE MINNESOTA PUBLIC UTILITIES COMMISSION 11 Seventh Place East, Suite 30 St. Paul, MN In the Matter of the Complaint by Qwest MPUC Docket No. P-0, /C-0- Communications Company, LLC against Tekstar Communications, Inc. regarding OAH Docket No Traffic Pumping SUPPLEMENTAL DIRECT TESTIMONY AND EXHIBITS OF JEFFREY D. OWENS ON BEHALF OF QWEST COMMUNICATIONS COMPANY, LLC AND SPRINT COMMUNICATIONS COMPANY L.P. September, 011

2 September, 011 TABLE OF CONTENTS I. INTRODUCTION 1 II. Audiocom and Joy Enterprises A. B. Joy Enterprises 3 C. Audiocom III. Free Conferencing Corporation

3 TABLE OF CONTENTS DEPOSITION EXHIBITS Supplemental Direct Testimony of Jeffrey D. Owens September, 011 Exhibit JDO-0a Deposition of David Erickson, Free Conference (011) Exhibit JDO-10a Deposition of David Goodale, Audiocom (011) Exhibit JDO-11a Deposition of David Goodale, Joy Enterprises, (011)

4 1 SUPPLEMENTAL DIRECT TESTIMONY 3 OF JEFFREY D. OWENS I. INTRODUCTION 10 Q. PLEASE STATE YOUR NAME. A. My name is Jeffrey D. Owens. 1 Q. WHAT IS THE PURPOSE OF THIS SUPPLEMENTAL TESTIMONY? 13 A. On April, 011, I submitted direct testimony on behalf of Qwest Communications 1 Company, LLC (Qwest)1 and Sprint Communications Company L.P. (Sprint). Qwest and Sprint 1 were not able to schedule several depositions prior to the completion of my direct testimony. As a 1 result, I reserved the right to supplement my direct testimony when these depositions became 1 available. After my direct testimony was submitted, the following depositions were taken: 1 May, 011 David Goodale, Joy Enterprises 1 May, 011 David Goodale, Audiocom3 0 July, 011 David Erickson, Free Conference 3 On April 1, 011, CenturyLink, Inc. completed its merger with Qwest Communications International, Inc. After the merger, Qwest Communications Company, LLC became a subsidiary of CenturyLink, Inc. See, Exhibit JDO-11a, Deposition of David Goodale, Joy Enterprises, (011). See, Exhibit JDO-10a, Deposition of David Goodale, Audiocom (011). See, Exhibit JDO-0a, Deposition of David Erickson, Free Conference (011).

5 September, 011, Page 1 My supplemental direct testimony is based on these three depositions and their associated exhibits, and provides further evidence that Tekstar is not entitled to assess switched access 3 charges for the traffic generated by Audiocom, Free Conference and Joy Enterprises. II. Audiocom and Joy Enterprises Q. HOW ARE AUDIOCOM AND JOY ENTERPRISES RELATED? A See, Exhibit JDO-11a, Deposition of D. Goodale (Joy Enterprises 011) at 10:13-. See, Exhibit JDO-11a, Deposition of D. Goodale (Joy Enterprises 011) at 13:1-1. See, Exhibit JDO-11a, Deposition of D. Goodale (Joy Enterprises 011) at 13:1-1:1.

6 September, 011, Page B. Joy Enterprises Q. BEFORE YOU DESCRIBE JOY ENTERPRISES IN MORE DETAIL, WERE THERE LIMITATIONS ON THE SCOPE OF DISCOVERY DOCUMENTS THAT JOY ENTERPRISES PROVIDED TO QWEST? A. Yes. Joy Enterprises refused to provide its financial records, 10 In the event that Joy Enterprises provides financial records, I reserve the right to further supplement my 10 testimony. 11 Q. WHAT SERVICES DOES JOY ENTERPRISES PROVIDE? 1 A See, Exhibit JDO-11a, Deposition of D. Goodale Jo Ente rises 011 at 1:- Exhibit JDO-10a, Deposition of D. Goodale (Audiocom 011) at 31:1-33:. See, Exhibit JDO-1 la, Deposition of D. Goodale (Joy Enterprises 011) at 1:1-1:1. See, Exhibit JDO-11a, Deposition of D. Goodale (Joy Enterprises 011) at 1:3-0:. See, Exhibit JDO-11a, Deposition of D. Goodale (Joy Enterprises 011) at 0:-1:1. See,

7 September, 011, Page Q. A Q. A. DOES JOY ENTERPRISES HAVE ANY EMPLOYEES? See, Exhibit JDO-11a, Deposition of D. Goodale (Joy Enterprises 011) at 1:0-3:1. See, Exhibit JDO-11a, Deposition of D. Goodale (Joy Enterprises 011) at 3:-:1. See, Exhibit JDO-11a, Deposition of D. Goodale (Joy Enterprises 011) at 3:1-1. See, Exhibit JDO-11a, Deposition of D. Goodale (Joy Enterprises 011) at 1:1-. See, Exhibit JDO-11a, Deposition of D. Goodale (Joy Enterprises 011) at 1:10-1. See, Exhibit JDO-11a, Deposition of D. Goodale (Joy Enterprises 011) at 1:-1 and 3:1-3. See, Exhibit JDO-11a, Deposition of D. Goodale (Joy Enterprises 011) at 3:-.

8 September, 011, Page 1 1 Q. DID JOY ENTERPRISES ESTABLISH A LEGITIMATE CUSTOMER PREMISE 3 IN TEKSTAR'S CENTRAL OFFICE? A. Q. DID TEKSTAR ESTABLISH A UNIQUE METHOD OF DETERMINING THE TRAFFIC VOLUMES FOR THE PURPOSE OF DETERMINING THE ACCESS 10 CHARGES IT WOULD SHARE WITH JOY ENTERPRISES? 11 A IMIIIMEM See, Exhibit JDO-11a, Deposition of D. Goodale (Joy Enterprises 011) at 0:3-:1. 0 See, Exhibit JDO-11a, Deposition of D. Goodale (Joy Enterprises 011) at 11:1-1:1. 1 See, Exhibit JDO-11a, Deposition of D. Goodale (Joy Enterprises 011) at 1:1-1:1 and Goodale (Joy-011) Exhibit 11. See, Owens Direct Testimony at pages See, Exhibit JDO-11a, Deposition of D. Goodale (Joy Enterprises 011) at 1:0-1:, 1:3:1:13 and Goodale (Joy-011) Exhibit 1.

9 September, 011, Page C. Audiocom Q. HOW DID AUDIOCOM COME INTO EXISTENCE? 3 A. Q. WHAT LECS HAS AUDIOCOM PARTNERED WITH? A Q. WHAT SERVICES DOES AUDIOCOM PROVIDE? 1 A Q. HAS AUDIOCOM PROVIDED ADULT CONTENT SERVICES? 1 A = Audiocom's provision of adult-content chat lines was confirmed by See, Exhibit JDO-10a, Deposition of D. Goodale (Audiocom 011) at 1:11-1:3. See, Exhibit JDO-10a, Deposition of D. Goodale (Audiocom 011) at 1:-0:. See, Exhibit JDO-10a, Deposition of D. Goodale (Audiocom 011) at 0:10-. See, Exhibit JDO-10a, Deposition of D. Goodale (Audiocom 011) at :-. See, Exhibit JDO-10a, Deposition of D. Goodale (Audiocom 011) at 1:3-1:.

10 September, 011, Page 1 Qwest employees who placed calls into Audiocom's chat lines It is clear that Audiocom provided adult-content chat lines. 11 Q. WAS AUDIOCOM A VIABLE BUSINESS WITHOUT THE SHARING OF 1 ACCESS REVENUES WITH TEKSTAR AND OTHER LECS? 13 A Q See, Exhibit JDO-0, Deposition of M. Baso (011) at :-. See, Direct Testimony of Lisa Hensley Eckert at pages See, Exhibit JDO-11a, Deposition of D. Goodale (Joy 011) at :0-:1. See, Exhibit JDO-11a, Deposition of D. Goodale (Joy 011) at Exhibit 1. See, Exhibit JDO-10a, Deposition of D. Goodale (Audiocom 011) at :-1.

11 September, 011, Page 1 A M Free Conferencing Corporation 1 1 Q. AS BACKGROUND FOR THIS PORTION OF YOUR SUPPLEMENTAL 0 TESTIMONY, PLEASE BRIEFLY SUMMARIZE YOUR DIRECT TESTIMONY 1 REGARDING FREE CONFERENCE. 3 3 See, Exhibit JDO-10a, Deposition of D. Goodale (Audiocom 011) (Audiocom 011) Exhibit 11. Trade Secret Direct Testimony, page 1, and Exhibit JDO-, (011), Exhibit 1. 3 See, Exhibit JDO-10a, Deposition of D. Goodale (Audiocom 011) (Audiocom 011) Exhibit 11. at :1-: and Goodale See, Owens Tekstar Deposition Exhibits at :-:11 and Goodale

12 September, 011, Page 1 A. My direct testimony was based upon the January 31, 00 deposition of Mr. David Erickson taken by Qwest in the Iowa Utilities Board Traffic Pumping Proceeding and the June 1, 3 00 deposition of Mr. Erickson taken by Sprint in a related case.3 My direct testimony reviewed Free Conference's IIMINIM Free conference calling services generated Q. IN HIS 011 DEPOSITION, DID MR. ERICKSON ADDRESS THE PERCENTAGE OF REVENUES THAT FREE CONFERENCE OBTAINED FROM THE SHARING OF 10 SWITCHED ACCESS CHARGES WITH TEKSTAR AND OTHER LOCAL EXCHANGE 11 CARRIERS? 1 A A review of Free Conference's 010 Profit and Loss 1 Statement revealed that 1 1 Q. 1 3 See, Exhibit JDO-0, Deposition of D. Erickson (00) and Exhibit JDO-0, Deposition of D. Erickson (00). 3 See, Owens Direct Testimony at page See, Owens Direct Testimony at page

13 September, 011, Page A. 111M M Q. DID FREE CONFERENCE ENTER INTO AN AGREEMENT WITH ARVIG? 3 Mr. Erickson estimated that of Free Conference's expenses were associated with free conference services. Free Conference's total expense in 010 was Thus, Free Conference's total 010 ex enses associated with free conference services was approximately. See, Exhibit JDO-0a, Deposition of D. Erickson (011) at 0:-13, 0:-0:1 and Erickson (011) Exhibit.

14 September, 011, Page 11 1 A. Yes. On April, 00, Free Conference entered into an agreement with Arvig which Mr. Erickson concedes defined the Free Conference-Arvig relationship, at least at that point in time. 3 The Free Conference-Arvig agreement provided that all telecommunications services provided to Free Conference would be Q. A IIIMI 11011=1" Q. DID ARVIG/TEKSTAR INCLUDE CHARGES FOR COLLOCATION ON ITS 1 INVOICES TO FREE CONFERENCE? See, Exhibit JDO-0a, Deposition of D. Erickson (011) at 3:3-1 and Exhibit 1 of the Erickson 011 Deposition (Exhibit JDO-313, Free Conference Agreement, April, 00). See, Exhibit JDO-0a, Deposition of D. Erickson (011) at 3:1-: and Exhibit 1 of the Erickson 011 Deposition (Exhibit JDO-313, Free Conference Agreement, April, 00) at Section. See, Exhibit JDO-0a, Deposition of D. Erickson (011) at 3:-1 and 3:-1 and Exhibit of the Erickson 011 Deposition (also attached to my direct testimony as Exhibit JDO-1, Free Conference Invoices Free Conference 00-). See, Exhibit JDO-0a, Deposition of D. Erickson (011) at 3:1-3:11 and Exhibit 3 of the Erickson 011 Deposition (also attached to my direct testimony as Exhibit JDO-1, Free Conference Invoices Free Conference 00-).

15 September, 011, Page 1 1 A. 3 0 Q. DID TEKSTAR BILL FREE CONFERENCE AN APPROPRIATE NUMBER OF SIP BINDINGS? A Q. HOW MANY SIP BINDINGS DID TEKSTAR PROVIDE TO FREE 1 CONFERENCE? 13 A. Because Tekstar did not maintain an accurate inventory of SIP Bindings, an accurate count 1 is not available. Even Mr. Erickson was unable to verify that Tekstar had billed Free Conference 1 for an appropriate number of SIP Bindings. In his deposition, he stated that "... I'm not even 0 1 See, Exhibit JDO-0a, Deposition of D. Erickson (011) at 3:13-1: and Exhibits and of the Erickson 011 Deposition. Also see, Exhibit JDO-1a, Summary of Tekstar Invoices (Free Conference) which was included as an exhibit to my direct testimony. See, Exhibit JDO-1a, Summary of Tekstar Invoices (Free Conference) which was included as an exhibit to my direct testimony. See, Exhibit JDO-1a, Summary of Tekstar Invoices (Free Conference) which was included as an exhibit to my direct testimony.

16 September, 011, Page 13 1 really sure what a SIP binding connection is..." 3 3 Q. CAN YOU ESTIMATE THE NUMBER OF SIP BINDINGS THAT TEKSTAR PROVIDED TO FREE CONFERENCE? A. Yes, there are two ways of estimating the quantity of RP Bindings that Tekstar provided to Free Conference. First, the number of conference bridges can provide an estimate, since each bridge was served by at least one SIP Binding. Second, 10 Q. HOW MANY CONFERENCE BRIDGES DID FREE CONFERENCE LOCATE IN 11 TEKSTAR'S CENTRAL OFFICE? 1 A. By April 010, Free Conference had ten or eleven conference bridges. Even if each 13 bridge was served by only one SIP Binding, Tekstar would have provided Free Conference with at 1 least ten or eleven SIP Bindings. 1 Q. HOW MANY IP ADDRESSES DID TEKSTAR ASSIGN TO FREE 1 CONFERENCE? 1 A. Initially, in April 00, Free Conference requested six private IP addresses. By 1 December 00, Free Conference required eight or nine private IP addresses. By March 00, 3 See, Exhibit JDO-0a, Deposition of D. Erickson (011) at :1-0:1. As I stated in m direct testimon, Mr. Klinnert of Tekstar testified See, Owens Direct Testimony at page and Exhibit JDO-1, Deposition of A. Klinnert (011) at 0:-1. See, Exhibit JDO-0a, Deposition of D. Erickson (011) at 10:1-10:0 and Erickson (011) Exhibit.

17 Supplemental. Direct Testimony of Jeffrey D. Owens September, 011, Page 1 Tekstar had already assigned private IP addresses, and Free Conference had requested the assignment of another block of private IP addresses. In June Free Conference requested an additional 1 private IP addresses, for a total of at least 1 private IP addresses. Free Conference was provided at least six and as many as 1 SIP Bindings throughout the April 00 to June 00 timeframe. Free Conference's traffic volume 1= Q. DID TEKSTAR BILL FREE CONFERENCE AN APPROPRIATE NUMBER OF 1 SIP BINDINGS? 13 A See, Exhibit JDO-0a, Deposition of D. Erickson (011) at 131:1-13: and Erickson (011) Exhibit. See, Exhibit JDO-0a, Deposition of D. Erickson (011) at 13:13-1 and Erickson (011) Exhibit 3. See, Exhibit JDO-0a, Deposition of D. Erickson (011) at 13:1-133:0 and Erickson (011) Exhibit 33. See, Exhibit JDO-0a, Deposition of D. Erickson (011) at 133:1-13: and Erickson (011) Exhibit 3. See, Exhibit JDO-1, Deposition of A. Klinnert (011) at 0:-1. See, Exhibit JDO-11, Tekstar Traffic Pumping Volumes to April 010 included as an exhibit to my direct testimony.

18 Supplemental. Direct Testimony of Jeffrey D. Owens September, 011, Page Q. WHILE TEKSTAR PAID FREE CONFERENCE A "MARKETING FEE," DID 1 FREE CONFERENCE ACTUALLY PERFORM ANY MARKETING ON BEHALF OF 1 TEKSTAR? 1 A. No. As I mentioned in my direct testimony, 1 See, Exhibit JDO-0a, Deposition of D. Erickson (011) at 13:1-13:1 and Erickson (011) Exhibit 3. Also see, Exhibit JDO-1a, Summary of Tekstar Invoices (Free Conference) included as an exhibit to my direct testimony.

19 September, 011, Page As a pretense to justify the payment of "marketing fees" to its FCSC partners, 3 In his deposition, Mr. Erickson admitted that Free Conference never implemented the "powered by Tekstar Communications" announcement to its customers and never intended to implement such an announcement. Despite the requirement in its new agreement with Tekstar, Free Conference refused to co-brand its services with Tekstar. Moreover, Free Conference 10 determined that it is not technically feasible to make an announcement at the end of a call, since 11 there is no warning that a particular caller is going to hang up, and, once Free Conference has 1 determined that a caller has hung up, it is too late to make an announcement of any kind. 13 Q. IN YOUR OPINION, WAS MR. ERICKSON FORTHCOMING IN HIS 1 DEPOSITION? 1 A. I found Mr. Erickson's testimony in his 011 deposition to be intentionally misleading in 1 some areas. For example, Mr. Erickson has been involved in the conferencing business for many 3 See, Owens Direct Testimony at pages - and Exhibit JDO-, Deposition of D. Schornack (011) at 11:1-11:1. See, Exhibit JDO-0a, Deposition of D. Erickson (011) at 0:-1: and Erickson (011) Exhibit, Section 1 (also included in my direct testimony as Exhibit JDO-313, Free Conference Agreement, June, 010).

20 September, 011, Page 1 1 years, The sharing of switched access revenues with local exchange 3 carriers represents of Free Conference's revenues. Nevertheless, in his deposition,

21 September, 011, Page The fact that switched access revenues are the source of Free Conference's revenue was well understood by Mr. Erickson in 00 when he participated in an on-line blog that discussed the See, Exhibit JDO-0a, Deposition of D. Erickson (011) at :1-31:1.

22 September, 011, Page 1 1 role of switched access charges in facilitating traffic pumping. Specifically, in his blog entry, Mr. Erickson complained about AT&T's unwillingness to pay a five cent terminating switched access 3 charge when, according to Mr. Erickson, AT&T received substantially more from its retail long distance customer. It is simply not believable that Mr. Erickson, 0 from his.% ownership in Free Conference, 1 doesn't understand that Free Conference's revenues are obtained through the sharing of access 10 revenues with local exchange carriers. 11 Q. DOES THIS CONCLUDE YOUR SUPPLEMENTAL TESTIMONY? 1 A. Yes, it does. 0 See, Exhibit JDO-0a, Deposition of D. Erickson (011) at Exhibit. See, Exhibit JDO-0a, Deposition of D. Erickson (011) at 0:-1. 1 See, Exhibit JDO-0a, Deposition of D. Erickson (011), Exhibit 3. See, Exhibit JDO-0a, Deposition of D. Erickson (011) at :-:. See, Exhibit JDO-0a, Deposition of D. Erickson (011) at 10:1-11:13 and Erickson (011) Exhibit 3.

23 VERIFICATION I, Jeffrey D. Owens, for CenturyLink state that I have first-hand knowledge of the matters set forth above and hereby verify that, to the best of my knowledge and belief, the allegations and statements contained herein are true and correct. Dated: September, 011