20070503Reply in opposition to ITA motion.pdf

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Molly O'Leary (ISB # 4996)
Richardson & O'Leary, P.LLC.O. Box 7218
Boise, ID 83707
Tel: [phone]
Fax: [phone]
molly(0richardsonandoleary .com
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Mark P. Trinchero, OSB #88322
1300 S.W. 5th Avenue, Suite 2300
Portland, Oregon 97201
Tel: [phone]
Fax: [phone]
mar ktrinchero(0d wt. com
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION
OF EDGE WIRELESS, LLC
FOR DESIGNATION AS AN ELIGIBLE
TELECO MMUNI CA TI 0 NS CARRIER
PURSUANT TO THE
TELECOMMUNICATIONS ACT OF 1996
(RURAL AND NON-RURAL AREAS)
Case No. EDG-O7-
EDGE WIRELESS, LLC
REPLY IN OPPOSITION
TO IT A MOTION FOR A
STAFF INVESTIGATION
Applicant Edge Wireless, LLC ("Edge ), by and through its attorneys of record Davis
Wright Tremaine LLP and Richardson & O'Leary, P.LLC., files this Reply in Opposition to
the Motion for a Staff Investigation, filed by the Idaho Telephone Association ("ITA") on April
2007 ("ITA's Motion ). Edge urges the Commission to deny ITA's Motion because it is
based on a misreading ofthe law, an obfuscation ofthe facts, and is intended solely to further
delay the public benefits to consumers in Idaho of designating Edge an eligible
telecomInunications carrier ("ETC,,
1 In its Comments Regarding Whether Further Proceedings Are Needed, filed April 25 , 2007 ("Edge s April 25th
Comments ), Edge anticipated many of the arguments set forth in ITA's Motion and responded to them in advance.
The Edge April 25th Comments are hereby incorporated herein by reference and attached for the Commission
convenience.
EDGE REPLY IN OPPOSITION TO ITA MOTION PAGE - 1
POX 1643847v1 0054189-000049
REPL Y
Introduction
ITA's Motion would have the Commission order Staffto "conduct a further
investigation" to confirm what both the Staff and IT A already know, namely, that Edge does not
currently serve all of its customers in the proposed ETC area with its own facilities.2 If it did
there would be very little need for Edge to request ETC designation to receive funds to invest in
facilities in these remote rural areas.
IT A's Motion is fundamentally flawed. IT A has misinterpreted the law to suggest that an
ETC applicant must offer the supported services throughout the proposed ETC area exclusively
through its own facilities. This is simply wrong. Federal law and this Commission s rules make
abundantly clear that an ETC applicant can offer the supported services through its own
facilities, the facilities of other carriers, or by constructing new facilities. In its Application
Edge has committed to responding to reasonable requests for service throughout the proposed
ETC area, consistent with the six-step process in the Commission s rules. The Commission
should reject ITA's request as it would waste valuable administrative resources to determine
matters that are not relevant to the Commission s eligibility criteria.
II.The Leg:al Standard
As noted in Edge s April 25th Comments, the legal standard adopted by this Commission
as well as the Federal Communications Commission ("FCC") requires that an ETC applicant
show:
2 ITA's Motion suggests that Commission Stafflacked information or was otherwise less than thorough in its
investigation. See ITA Motion, p. 6. This is a gross mischaracterization. Staff was fully apprised of the extent of
Edge s current network coverage and planned network coverage. In fact, Edge reviewed its coverage maps and
build out plan in detail in a meeting with Commission Staff in early January, 2007. See Affidavit of Eric Anderson
at '7.
EDGE REPLY IN OPPOSITION TO ITA MOTION PAGE - 2
pox 1643847vl 0054189-000049
that it will: (a) provide service on a timely basis to requesting customers within
applicant's service area where the applicant's network already passes the potential
customer s premises; and (b) provide service within a reasonable period of time
ifthe potential customer is within the applicant's licensed area but outside its
existing network coverage, if service can be provided at reasonable cost by (i)
modifying or replacing the requesting customer s equipment; (ii) deploying roof-
mounted antenna or other equipment; (iii) adjusting the nearest cell tower; (iv)
adjusting network or customer facilities; (v) reselling services from another
carrier s facilities to provide service; or (vi) employing, leasing or constructing an
additional cell site, cell extender, repeater, or other similar equipment.
This legal standard very clearly contemplates that the facilities of an ETC applicant will not
necessarily reach all customers within the proposed ETC area. The eligibility criteria recognize
that some customers will be reached through the resale of services from another carrier
facilities or the construction of new facilities, and that in certain circumstances it will be
unreasonable to serve a requesting customer at all. Accordingly, the extent of current coverage
from Edge s own facilities is irrelevant. Edge has made the required commitment to provide
service consistent with the Commission s requirements. The rules also require Edge to report
annually the number of requests for service from potential customers within its ETC service
areas that were unfulfilled in the previous year along with an explanation of how it attempted to
provide service to those potential customers. Thus, the Commission has a means in place for
holding Edge accoun~able to its commitment.
III.Building: Out Wireless Networks
ITA's Motion focuses exclusively on where Edge facilities provide coverage today.
This focus is not only irrelevant under the applicable legal standard, it also ignores entirely the
3 Order No. 29841, Appendix p. 2 (Case No. WST-05-, Aug, 4, 2005); see also In the Matter of the Federal-
State Joint Board on Universal Service CC Docket No. 96-, 20 F.c.C.R. 637, '22.4 ITA's allegations regarding the extent of existing coverage are not only irrelevant, but inaccurate. See Affidavit of
Eric C. Anderson, "8-
EDGE REPLY IN OPPOSITION TO IT A MOTION PAGE - 3
pox 1643847vl 0054189-000049
reality of how wireless networks are built out and why universal service support for wireless
carriers is an important means of furthering the public interest.
Edge has FCC licensed spectrum covering the entire proposed ETC area. This spectrum
is a significant infrastructure investment and is sufficient to provide service in the entire
proposed ETC area. Edge has a switch in Pocatello and a customer care center in Idaho Falls
that have capacity to provide service in the entire ETC area. Edge also has the employees and
equipment necessary to construct, operate and maintain a network throughout the ETC area.
Universal service support will enable Edge to build the cell sites needed to leverage these
existing facilities and provide state-of-the art wireless voice service to rural areas, as well as the
added benefit of wireless data services. The two year build-out plan is just the beginning. Edge
is committed to build out the rural wire centers and has the proven ability to do so.
Edge Wireless launched its initial service in Idaho in December of 2000 with thirty-two
(32) cell sites. In just over six years Edge has expanded its coverage by increasing its operating
cell sites from thirty-two (32) to one hundred forty-seven (147), an average of nineteen (19) sites
per year. 7 This illustrates how wireless carriers launch networks and expand coverage and
capacity over time. It also illustrates Edge s capabilities when it comes to building coverage in
rural Idaho. In addition, Edge s two-year plan includes planned investment of universal service
support to construct and enhance its facilities in many of these wire centers.
ITA's Motion also suggests, again erroneously, that Edge s two-year plan somehow
represents the sum total of all additional network investment that Edge will ever make in Idaho.
5 ITA's focus is based upon an ILEC worldview, in which rural ILECs continue to receive universal service support
to maintain networks that were built out years ago. Wireless carriers such as Edge, on the other hand, propose to use
universal service support to build out new networks.
See Affidavit of Eric C. Anderson, "3-
Id. at '6.
Id. at'lO. See also Highly Confidential Exhibits D-Narrative through D-
See ITA Motion, p. 4.
EDGE REPLY IN OPPOSITION TO ITA MOTION PAGE - 4
pox 1643847vl 0054189-000049
It is important for the Commission to recognize that the two-year network plan is merely that - a
plan showing how Edge will invest the universal service support it receives over the next two
years. Under the Commission rules, as a condition to receiving continued support, Edge will file
an updated two-year plan each year, showing not only what it accomplished in the preceding
year, but also extending the plan out one additional year in the future. For example, the current
two-year network plan shows planned investment for second quarter 2007 through first quarter
2009. Next year, Edge will file an updated plan showing planned investment through 2009. The
following year, Edge will file an updated plan showing planned investment through 2010. And
so on.
Finally, ITA's Motion would have the Staff determine whether Edge s depiction of its
network coverage is accurate. 10 Edge uses state-of-the-art software prediction tools to produce
its coverage maps. This software is trusted in the wireless industry for accuracy in predicting
Radio Frequency Signal propagation. 1 1 Having the Staff "confirm" the accuracy of these
propagation maps is a complete waste of Commission resources.
IV.The "Cream Skimming: Analysis
In support of its unprecedented request for a Staff investigation, ITA again misinterprets
the law. In a blatant attempt to find any possible hook for its novel recommendation, ITA
latches on to the Commission s statement that it will "conduct a cream skimming analysis" when
an ETC applicant seeks designation below the study area level of a rural telephone company.
This is completely inapposite in this case. Edge is not seeking designation below the study area
10 ITA Motion, p. 6.
11 Affidavit of Eric C. Anderson, '11.
12 Pursuant to a request from Commission Staff, attached hereto as Highly Confidential Exhibit A is a map showing
Edge s current coverage map with the ILEC wire center boundaries superimposed. Attached as Highly Confidential
Exhibit B is a map showing Edge s additional coverage from proposed GSM infrastructure investment pursuant to
its two-year plan, with the ILEC wire center boundaries superimposed.13 ITA Motion, p. 5.
EDGE REPLY IN OPPOSITION TO ITA MOTION PAGE - 5
POX 1643847vl 0054189-000049
level of any rural ILEC in Idaho. In fact, Edge has intentionally carved out several wire centers
that otherwise fall within its licensed service area precisely because other wire centers in the
same study area fall outside Edge s license area. 14
Nor is the "cream skimming analysis" mentioned in the Commission s eligibility rules at
all similar to the Staff investigation that ITA requests. A cream skimming analysis merely
requires a comparison of population density between wire centers. Such an analysis is readily
performed based on population statistics collected and published by the Census Bureau. It does
not require a "Staff investigation.
Finally, ITA tries to claim that a "partial wire center" cream skimming analysis is
required. This is wrong for two reasons. First, the cream skimming analysis refers to serving
less than all the wire centers in a multiple wire center rural ILEC study area. 15 It has nothing to
do with partial wire centers. Second, Edge is not proposing to serve any partial wire centers. As
discussed above, and in Edge s April 25th Comments, Edge s Application states that Edge will
serve all reasonable requests from customers within the wire centers that comprise its ETC area
consistent with the six step process described in the Commission s rules.
CONCLUSION
For the foregoing reasons, Edge urges the Commission to deny ITA's Motion. ITA'
Motion is based on a misreading of applicable law and a misstatement of the relevant facts. The
Commission should see the ITA Motion for what it is, namely, another blatant attempt to unduly
delay Edge s ETC designation. ITA has every incentive to delay, because ETC designation will
make Edge a more formidable competitor, both for the ITA members in their capacity as rural
ILECs and in their capacity as members of the Syringa Wireless consortium. Such tactics should
14
See Application at footnote 9.
15 See Order No. 29841 at 16.
EDGE REPLY IN OPPOSITION TO IT A MOTION PAGE - 6
POX 1643847vl 0054189-000049
not be condoned. The Commission should deny ITA's Motion and expeditiously process Edge
Application by Modified Procedure.
Respectfully submitted this 3rd day of May, 2007.
RICHARDSON & O'LEARY , PLLC
EDGE REPLY IN OPPOSITION TO IT A MOTION PAGE - 7
POX 1643847vl 0054189-000049
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 3rd day of May, 2007 a true and correct copy of the
within and foregoing EDGE WIRELESS, LLC's REPLY IN OPPOSITION TO ITA MOTION
FOR A STAFF INVESTIGATION filed with the Idaho Public Utilities Commission and served
on the parties as indicated below:
Ms. Jean Jewell
Commission Secretary
Idaho Public Utilities Commission
POBox 83720
Boise ID 83720-0074
K- Hand Delivery
- U.S. Mail, postage pre-paid
Facsimile
Electronic Mail
Dean 1. Miller
McDEVITT & MILLER LLP
O. Box 2564
Boise, Idaho 83701
Fax: [phone]
Email: ioe(0mcdevitt-miller.com
- Hand Delivery
S. Mail, postage pre-paid
Facsimile
Electronic Mail
Nathan Glazier
Regional Manager, State Affairs
Alltel Communications, Inc
4805 Thistle Landing Dr.
Phoenix, AZ 85044
Fax: [phone]
Email: Nathan.glazier~alltel.com
- Hand Delivery
u.S. Mail, postage pre-paid
Facsimile
Electronic Mail
Conley E. Ward
Michael C. Creamer
GIVENS PURSLEY LLP
O. Box 2720
Boise, ID 83701-2720
Fax: [phone]
Email: cew~givenspursley.com
Email: mcc~givenspursley.com
- Hand Delivery
2LU.S. Mail, postage pre-paid
Facsimile
Electronic Mail
CERTIFICATE OF SERVICE -
Molly Steckel
Executive Director
Idaho Telephone Association
O. Box 1638
Boise, Idaho 83701- 1638
Fax: [phone]
Email: mollysteckel~msn.com
- Hand Delivery
2Lu.S. Mail, postage pre-paid
Facsimile
Electronic Mail
CERTIFICATE OF SERVICE - 2
AFFIDA VIT
ERIC C. ANDERSON
HIGHLY CONFIDENTIAL
USE RESTRICTED PER
PROTECTIVE
AGREEMENT IN DOCKET
NO. EDG-O7-
Molly O'Leary (ISB # 4996)
Richardson & O'Leary, P.LLc.
O. Box 7218
Boise, ID 83707
Tel: [phone]
Fax: [phone]
mo 11 y~richardsonandoleary. com
:. ,,) -: ..
~-"'i,::s:I
Mark P. Trinchero, OSB #88322
1300 S.W. 5th Avenue, Suite 2300
Portland, Oregon 97201
Tel: [phone]
Fax: [phone]
marktrinchero~dwt.com
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION
OF EDGE WIRELESS, LLC
FOR DESIGNATION AS AN ELIGIBLE
TELECOMMUNICATIONS CARRIER
PURSUANT TO THE
TELECOMMUNICATIONS ACT OF 1996
(RURAL AND NON-RURAL AREAS)
AFFIDAVIT OF ERIC C.
ANDERSON IN SUPPORT
OF EDGE WIRELESS LLC
REPLY IN OPPOSITION
TO IT A MOTION
Case No. EDG- T -07-
STATE OF OREGON
) ss.
County of Bend
ERIC C. ANDERSON, being first duly sworn upon oath, deposes and states as follows:
1. My name is Eric C. Anderson and I am Director of Engineering for Edge Wireless
LLC.
2. In my capacity as Director of Engineering for Edge Wireless, LLC ("Edge ) I am
familiar with the technology and facilities required to provide wireless service in Edge s licensed
service territory in Idaho.
AFFIDAVIT OF ERIC C. ANDERSON Page -
pox 1644078vl 0054189-000049
3. Edge has FCC licensed spectrum covering the entire proposed eligible
telecommunications carrier ("ETC") area. This spectrum is a significant infrastructure
investment and is sufficient to provide service in the entire proposed ETC area.
4. Edge has a switch in Pocatello and a customer care center in Idaho Falls that have
capacity to provide service in the entire ETC area. Edge also has the employees and equipment
necessary to construct, operate and maintain a network throughout the ETC area.
5. Universal service support will enable Edge to build the cell sites needed to leverage
these existing facilities and provide state-of-the art wireless voice service to rural areas, as well
as the added benefit of wireless data services.
6. Edge Wireless launched its initial service in Idaho in December of 2000 with thirty-
two (32) cell sites. In just over six years Edge has expanded its coverage by increasing its
operating cell sites from thirty-two (32) to one hundred forty-seven (147), an average of nineteen
(19) sites per year.
7. In conjunction with filing its Application for designation as an eligible
telecommunications service, Edge reviewed its coverage maps and build-out plan in detail in a
meeting with Commission Staff in early January, 2007.
8. Edge provides service in . Edge provides service
the with
Edge currently has
Edge currently provides service to
Edge also provides
AFFIDAVIT OF ERIC C. ANDERSON Page - 2
pox 1 644078vl 0054189-000049
9. Edge s two yem- plan proposes
10. Edge proposes building twenty-one (21) new cell towers in rural high cost areas over
the next two (2) years as outlined in the Edge two year network plan. Edge intends to continue
expanding its coverage in high cost areas in subsequent years. These expansions will be outlined
annually during the recertification process.
11. Edge uses state-of-the-art software prediction tools to produce its coverage maps.
This software is trusted in the wireless industry for accuracy in predicting Radio Frequency
Signal propagation.
DATED this ~ay of May, 2007.
Eric C. Anderson
Subscribed and sworn to, before me, thi day of May, 2007.
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AFFIDAVIT OF ERIC C. ANDERSON Page - 3
pox 1644078vl 0054189-000049
EXHIBIT A
HIGHLY CONFIDENTIAL
USE RESTRICTED PER
PROTECTIVE
AGREEMENT IN DOCKET
NO. EDG-O7-
EXHIBIT B
HIGHLY CONFIDENTIAL
USE RESTRICTED PER
PROTECTIVE
AGREEMENT IN DOCKET
NO. EDG-O7-
Molly O'Leary (ISB # 4996)
Richardson & O'Leary, P.L.L.C.
O. Box 7218
Boise, ID 83707
Tel: [phone]
Fax: [phone]
mo II Y(0richardsonando leary. com
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Mark P. Trinchero, OSB #88322
1300 S.W. 5th Avenue
, Suite 2300
Portland, Oregon 97201
Tel: [phone]
Fax: [phone]
marktrinchero(0d wt. com
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION
OF EDGE WIRELESS, LLC
FOR DESIGNATION AS AN ELIGIBLE
TELECOMMUNICATIONS CARRIER
PURSUANT TO THE
TELECOMMUNICATIONS ACT OF 1996
(RURAL AND NON-RURAL AREAS)
COMMENTS OF EDGE
WIRELESS, LLC
REGARDING FURTHER
PROCEEDINGS
Case No. EDG-07-
Applicant Edge Wireless, LLC ("Edge ), by and through its attorneys of record Davis
Wright Tremaine LLP and Richardson & O'Leary, P.L.L.C., files these Comments pursuant to
the schedule established in Commission Order No. 30286, in which the Commission ordered that
within twenty-eight (28) days of the service date of this Order Edge and ITA shall inform the
Commission as to whether it believes a hearing is necessary in this matter or if the matter may
continue to be processed by Modified Procedure."l For the reasons set forth below, Edge
respectfully requests that the Commission continue to process this matter by Modified Procedure
I Order No. 30286, p. 3.
EDGE WIRELESS , LLC'
COMMENTS REGARDING
FURTHER PROVEEDINGS -
pox 1641846vl 0054189-000049
confidential exhibits to the Petition, opting instead to wait until the final day of the comment
period to raise this issue, an obvious delay tactic.
In response to ITA's request, the Commission ordered Edge and ITA to enter into a
confidentiality agreement to allow ITA to review Edge s two-year network plan. The parties
entered into such an agreement and confidential documents were exchanged, including the
confidential exhibits to the Petition as well as additional confidential information requested by
ITA. The parties also convened a conference call in order to permit ITA to ask clarifying
questions regarding the material that had been provided.
COMMENTS
Based upon representations of counsel6, it is Edge s understanding that ITA will
recommend to the Commission that it order Commission Staff to conduct a field audit to confirm
that Edge s two-year plan will result in improved wireless coverage in rural wire centers as
shown in Confidential Exhibit D-7 The Commission should reject this unprecedented request.
The Commission Staff has already conducted an exhaustive review ofthe Petition and Exhibits
and has concluded that Edge s thorough and detailed two-year plan "indicates to Staff that Edge
has made an effort to understand the rural wire centers' deficiencies and has determined how
they plan to improve these wire centers.8 Furthermore, the Staff Comments correctly point out
that "the annual submission of the Two-Year Network Improvement Plan and Progress Report
5 Edge Reply Comments, p. 4 (filed March 22, 2007).6 Edge reserves the right to reply to ITA's Comments if necessary.7 Confidential Exhibit D-4 contains two maps that show anticipated wireless signal strength related to the
infrastructure investment contemplated in Edge s two-year network plan.8 Staff Comments, p. 8.
EDGE WIRELESS, LLC'
COMMENTS REGARDING
FURTHER PROVEEDINGS - 3
POX 1641846vl 0054189-000049
insufficient there. This recommendation is flawed both on a legal basis and as a matter of public
policy, and should be rejected. First and foremost, ITA's argument is based on a fundamental
misunderstanding of the Commission s requirements. IT A appears to believe that Edge must
show that it is currently providing ubiquitous service throughout its proposed ETC area. This is
simply not the legal standard adopted by this Commission, or the Federal Communications
Commission ("FCC). The relevant eligibility requirement is certification by the applicant:
that it will: (a) provide service on a timely basis to requesting customers within
applicant's service area where the applicant's network already passes the potential
customer s premises; and (b) provide service within a reasonable period of time
if the potential customer is within the applicant's licensed area but outside its
existing network coverage, if service can be provided at reasonable cost by (i)
modifying or replacing the requesting customer s equipment; (ii) deploying roof-
mounted antenna or other equipment; (iii) adjusting the nearest cell tower; (iv)
adjusting network or customer facilities; (v) reselling services from another
carrier s facilities to provide service; or (vi) employing, leasing or constructing an
additional cell site, cell extender, repeater, or other similar equipment.
The extent of Edge s current coverage is, therefore, irrelevant. Edge has made the required
commitment to provide service consistent with the Commission s requirements. The rules also
require Edge to report annually the number of requests for service from potential customers
within its ETC service areas that were unfulfilled in the previous year along with an explanation
of how it attempted to provide service to those potential customers. Thus, the Commission has a
means in place for holding Edge accountable to its commitment.
IT A's request to carve out the Challis wire center is also contrary to the public interest.
Edge s two-year plan specifies that it intends to spend significant universal service funds to
improve coverage in the Challis wire center. 13 In fact, Edge intends to spend substantially more
than the USF support available from that wire center because Edge would not otherwise be able
12 Order No. 29841 , Appendix p.2 (Case No. WST-05-, Aug, 4, 2005)13 See Petition Confidential Exhibit D, Narrative, p. 2.
EDGE WIRELESS, LLC'
COMMENTS REGARDING
FURTHER PROVEEDINGS - 5
POX 1641846vl 0054189-000049
Respectfully submitted
RICHARDSON & O'LEARY , PLLC
EDGE WIRELESS, LLC'
COMMENTS REGARDING
FURTHER PROVEEDINGS - 7
POX 1641846vl 0054189-000049