20070426Comments re further proceedings.pdf

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Molly O'Leary
Tel: [phone] fax: [phone]
molly((llricha rdsonandolca ry. co
1'.0. Box 7218 Boise 10. 83707 - 515 N. 27th St. Boise, 11).83702
25 April 2007
Ms. Jean Jewell
Commission Secretary
Idaho Public Utilities Commission
POBox 83720
Boise ID 83720-0074
Hand Delivered
RE:EDG-07-, Edge Wireless, LLC Application for ETC
Designation
Dear Ms. Jewell:
I am enclosing an original and seven (7) copies of EDGE WIRELESS, LLC'
COMMENTS REGARDING FURTHER PROCEEDINGS.
Also enclosed is a copy to be date-stamped and returned for our files.
Sincerely,
, PLLC
Molly O'Leary (ISB # 4996)
Richardson & O'Leary, P.LLC.
O. Box 7218
Boise, ID 83707
Tel: [phone]
Fax: [phone]
mo 11 y~richardsonando leary. com
2~87t,.:2J ;;,;;:20
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Mark P. Trinchero, OSB #88322
1300 S.W. 5th Avenue, Suite 2300
Portland, Oregon 9720 I
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)
COMMENTS OF EDGE
WIRELESS, LLC
REGARDING FURTHER
PROCEEDINGS
Case No. EDG-O7-
Applicant Edge Wireless, LLC ("Edge ), by and through its attorneys of record Davis
Wright Tremaine LLP and Richardson & O'Leary, P.LLC., files these Comments pursuant
the schedule established in Commission Order No. 30286, in which the Commission ordered that
within twenty-eight (28) days ofthe service date ofthis 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.For the reasons set forth below, Edge
respectfully requests that the Commission continue to process this matter by Modified Procedure
1 Order No. 30286 p. 3.
PDX 1641846vl 0054189-000049
EDGE WIRELESS , LLC'
COMMENTS REGARDING
FURTHER PROVEEDINGS - I
and that it reject any request from the Idaho Telephone Association ("ITA") for further
investigation or hearings. Edge also respectfully requests that the Commission issue an order
granting Edge s Petition for designation as an Eligible Telecommunications Carrier ("ETC") as
soon as practicable.
BACKGROUND
On January 22 2007, Edge filed its Petition seeking designation as an ETC. On February
, 2007 , the Commission issued notice that modified procedure would be used and established a
comment period that ended on March 13 2007.2 Comments were filed on March 13, 2007 by
Commission Staff ("Staff Comments ) and by ITA ("ITA Comments
The Staff Comments describe in detail the extensive review of Edge s Petition that Staff
had performed. The Staff Comments also commend Edge on the thoroughness of its Petition and
state that "the attention to detail demonstrated in (Edge s) two-year network plan indicates a
serious commitment to provide reliable, state-of the-art telecommunications to the rural wire
center consumers.',3 In conclusion, the Staff Comments find that "Edge meets all federal and
state requirements to be granted ETC designation in both the non-rural and rural wire centers
and recommends that the Commission "approve the Application.
IT A, on the other hand, argued that it needed an opportunity to review the confidential
exhibits that had been submitted as part of the Petition. In its Reply Comments, Edge pointed
out that ITA had never requested of Edge nor of the Commission a copy of any of the
See Order No. 30240.3 Staff Comments, pp. 9-10.4 Staff Comments, p. 10.
PDX 1641846vl 0054189-000049
EDGE WIRELESS , LLC'
COMMENTS REGARDING
FURTHER PROVEEDINGS - 2
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
IT A. 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 counsel , 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 of the 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.
PDX 1641846vl 0054189-000049
EDGE WIRELESS, LLC'
COMMENTS REGARDING
FURTHER PROVEEDINGS - 3
will hold the Company accountable for making a reasonable effort to implement the network
improvement plan.
The Commission should see the IT A proposal for what it really is - yet another delay
tactic. 10 The Commission should reject such obvious delay tactics and process the Petition by
Modified Procedure. Further delay in granting Edge s Petition will result in Edge missing the
limited building season in many of the mountainous areas in which it intends to invest universal
support funds. It is in the public interest for the Commission to approve the Petition now in
order for Edge to receive USF support in time to complete the contemplated construction. If the
Commission, instead, permits ITA to unduly delay Edge s ETC designation, Edge will be forced
to move a number of the projects scheduled for this year to the 2008 construction season. The
Commission should not allow ITA's delay tactics to impede the expansion of needed wireless
coverage in rural areas. Other states are reaping the benefits of federal universal service support
for competitive ETCs.'1 Idaho is one of only a handful of states that has not designated a
competitive ETC for rural ILEC areas. The practical effect is that Idaho communications
consumers who pay into the fund are subsidizing infrastructure build-out in other states. It
would be in the public interest to ensure that these Idaho consumer contributions to the fund find
their way back to Idaho.
It is also Edge s understanding, based upon representations from ITA counsel, that ITA
will recommend to the Commission that it "carve out" the Challis wire center (and perhaps other
wire centers) from Edge s ETC area because ITA believes Edge s current wireless coverage is
Id.
JO ITA member companies have a two-fold interest in delaying Edge s ETC designation because they compete with
Edge both as rural ILECs and as members of the wireless consortium known as Syringa Wireless, LLc. See Edge
Reply Comments, pp. 4-
11 See Attachment A hereto, Universal Service Administrative Company 2006 Annual Report, p. 41.
PDX 1641846vl 0054189-000049
EDGE WIRELESS, LLC'
COMMENTS REGARDING
FURTHER PROVEEDINGS - 4
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. ITA 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)
l3 See Petition Confidential Exhibit D, Narrative, p. 2.
PDX 1641846vl 0054189-000049
EDGE WIRELESS , LLC'
COMMENTS REGARDING
FURTHER PROVEEDINGS - 5
to provide needed services.14 Carving out the Challis wire center from Edge s ETC area would
be counter-intuitive and contrary to the entire purpose of designating a wireless ETC, namely
making funds available to improve service in rural areas where coverage needs improvement.
The need for more cellular service and the benefits of introducing more competitive wireless
service in the Challis wire center is detailed in the attached April 17, 2007 article from the
Challis Messenger, in which Dennis Thornock, manager of the Custer Telephone Cooperative
is quoted stating that "Custertel is in favor of competing cellphone companies (in Challis)
because if people can t get cellular coverage or high-speed wireless Internet in the future, they
probably move elsewhere.16 Thornock also notes that growth in wireless communications fuels
economic growth. The ITA carve out proposal would have the exact opposite effect, and should
be rejected.
CONCLUSION
F or the foregoing reasons, Edge urges the Commission to process this matter by Modified
Procedure and approve its Petition as soon as practicable. The Commission should reject ITA'
unprecedented request for a Staff field audit. The Commission should also reject ITA's carve
out recommendation as it is based on a misreading of the law and is contrary to the public
interest.
Dated this 25th day of April, 2007.
14 Id.
15 Custer Telephone Cooperative, Inc., a member of the ITA, operates an affiliate cell phone service in the Challis
area in cooperation with Alltel.
16 See Attachment B
, "
City of Challis sets May hearing for tower zone , by Todd Adams, The Challis Messenger
April 17 2007.
PDX 1641846vl 0054189-000049
EDGE WIRELESS, LLC'
COMMENTS REGARDING
FURTHER PROVEEDINGS - 6
Respectfully submitted
RICHARDSON & O'LEARY, PLLC
PDX 1641846vl 0054189-000049
EDGE WIRELESS, LLC'
COMMENTS REGARDING
FURTHER PROVEEDINGS - 7
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 25th day of April, 2007 a true and correct copy ofthe
within and foregoing COMMENTS OF EDGE WIRELESS, LLC REGARDING FURTHER
PROCEEDINGS was 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
2L 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~mcdevitt-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~gi venspursley. 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
x..U.S. Mail, postage pre-paid
Facsimile
Electronic Mail
CERTIFICATE OF SERVICE - 2
ATTACHMENT A
EDGE WIRELESS, LLC'
COMMENTS REGARDING
FURTHER PROVEEDINGS
ATTACHMENT A
IVE RSAL RVI STRATIVE COM PANY
HIGH COST PROGRAM. DISBURSEMENTS BY INCUMBENT V. COMPETITIVE ETC.
2006 . UNAUDITED (in thousands)
State Incumbent ETC Competitive ETC Total 2006
Alabama 99,577 16,394 115 971
Alaska 98,115 471 153 586
American Samoa 308 428 736
Arizona 143 872 015
Arkansas 101 917 589 132 506
California 105 001 056 106 058
Colorado 033 505 538
Connecticut 148 148
Delaware 261 261
District of Columbia
Fiorida 188 419 607
Georgia 093 625 107 717
Guam 360 345 70~.
Hawaii 582 214 797
Idaho 130 130
Illinois 67,768 67,769
Indiana 897 560 457
Iowa 386 239 105 625
Ka nsas 135,354 836 190 1~0
Kentucky 438 669 107 .
Louisiana 110 873 126 983
Maine 752 199 951
Maryland 544 547
Massach usetts 827 827
Michigan 43,794 144 938
Minnesota 602 40,292 119 8~4
MisSissippi 136 387 139 647 276 Ql~Missouri 85,966 123 089
Montana 634 525 7$,1!J.9 ,.
Nebraska 5$,2.1J9 492 81,771 ,
Nevada 927 327 254
New Hampshire 820 257 077
New Jersey 279
New Mexico 313 215 65,528
New York 613 309 922
North Carolina Q~J.437 81 ,469
North Dakota Q.$535 80,903
Northern Mariana Islands 590 226 816
Ohio 582 4: 1 582 .
Oklahoma 107 00Q 16,630 123 62SJ
Oregon 298 952 250
Pennsylvania 023 491 514
Puerto Rico 29,461 93,860 123 321
Rhode Island
South Carolina 895 895
South Dakota 090 381 89,471
Tennessee 50,~20 .1,494 814
Texas 206,078 646 230,723
Utah 912 262 174
Vermont 958 880 30,838
Virgin Islands 25,250 25,250
Virginia 65,675 836 79,510
Washington 928 835 102,793
West Virginia 59,664 677 341
Wisconsin 013 196 134 209
Wyoming 687 950 637
TOTAL 116 405 $979 916 $ 4 096 321
Note: Numbers may not add due to rounding,
2 0 0 6
ATTACHMENT
EDGE WIRELESS, LLC'
COMMENTS REGARDING
FURTHER PROVEEDINGS
ATTACHMENT B
The Challis Messenger - April 25, 2007 Page 1 of 3
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City of Challis sets May hearing for tower zone
BY TODD ADAMS
After an hour-long informational meeting on cellphone towers, the
Challis City Council scheduled a May 8 public hearing on an
ordinance creating a commercial tower zone adjacent to the Challis
dump road.
Dennis Thornock, manager of the Custer Telephone Cooperative
presented the council with the draft of a less restrictive communication
tower ordinance that he said would be more flexible and better allow
cellphone companies to provide coverage in the city. He plans to
submit a similar one to Custer County.
Council members took no action Tuesday on Thornock's draft, saying
they wanted to compare it to the city's latest version. The mayor and
council agreed it would be best to have a separate ordinance for setting
standards for communication towers. They set the public hearing to
consider establishing a 150-by-150 foot communication tower zone on
property owned by the Dan and Spencer Strand families adjacent to the
Challis dump road. The tower zone would allow up to four towers
serving up to 12 companies, to be built in the same location.
New ordinance?
Thornock said at the April 10 meeting that the city's proposed
ordinance and the one adopted by the county were not flexible enough
to allow growth in wireless communications, which in turn fuels
economic growth. Custertel's draft removes restrictions such as a 120-
foot height limit, a ban on lattice towers (which are less expensive to
GO! build) and a section that prohibits tower location on ridgelines and
other scelllC areas.
Allowing towers to be 150 feet or taller and atop ridges may mean
fewer towers built in Custer County to cover a larger area, Thornock
said. As a county resident
, "
I'd like to see less towers and more
coverage " he said. "If you limit it, you won t have coverage.
The city's proposed ordinance, and one adopted by the county on
March 17, came from model ordinances in other, flatter Idaho counties.
Custer County's rugged, mountainous terrain and sparse population
make it a different ballgame, Thornock said.
If the city and county aren t flexible enough, the area won t have
adequate cellular coverage, Thornock said. Custertel is in favor of
competing cellphone companies here because if people can t get
cellular coverage or high-speed wireless Internet in the future, they
probably move elsewhere. Custertel's digital cellular signal technology
is different and can t be received by users with some other cellphones
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he said.
Custer County probably won t see a huge proliferation of cell towers
at least in Thornock's lifetime, he said.
Frank O'Leary and other Edge Wirelss representatives also attended
the meeting to answer questions. O'Leary said he reviewed Thornock'
draft ordinance and Edge agrees with parts, but disagrees with others.
He told the council that Edge is willing to make whatever site the city
grants workable, if technically possible. The company has been
positive when asked to move from one proposed site to another, he
said.
The best site for cellphone coverage was the first one, proposed on
private property across Main Street from Custertel's existing tower.
Public opposition to that site led to the council voting last year to deny
a variance and special use permit. The council took the company
proposed Peck's Hill site off the table after more opposition. Edge then
proposed the third, dump road, site.
Edge says a 150-foot tower is needed at the dump road site to reach the
golf course. The city's ordinance proposes a 120-foot height limit.
Each site has different challenges, O'Leary said. The higher dump road
tower would cost more to build, but maintenance costs would be lower
since it's closer to a road and utilities. The 65-foot Peck's Hill tower
would cost less to build, but it would cost more to develop that site and
it would give poor coverage along Highway 93 and the Challis Creek
areas, he said.
There are tradeoffs, O'Leary said, but as long as the city's chosen site is
economically and technically workable
, "
we will go where the city
directs us.
Another option with a shorter tower at the dump road site would be a
line-of-sight repeater to carry a signal to the golf course. That would be
more expensive and less reliable, said Edge engineer Shad Rydaich.
Mayor Janette Burstedt Piva said the city and Edge have considered
other sites, such as one on undeveloped Bluff Avenue behind the
Salmon River Electric pole yard, but not as seriously.
A proposal to co-locate on Custertel's tower has not been in the
running. Thornock said the tower has no room for more equipment and
any addition to its 1O5-foot height would have to be approved by a
structural engineer.
Thomsen asked about building a new, taller, Custertel tower 50 feet
away from the old one and the co-op renting space to Edge and other
compames.
That's an option, Thornock replied. But adding height to the existing
tower or building a new one would be expensive, and Edge probably
wouldn't be interested in leasing at the high cost Custertel would need
to recover costs.
Thornock said he s concerned that the existing city and county
ordinances restrict wireless broadband (voice, video and data). If the
governments limit tower sites to cost- prohibitive places, companies
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4/25/2007
The Challis Messenger - April 25 , 2007
won t locate here. With larger companies buying up the smaller ones
it's likely that only one other company besides Edge? Verizon ?would
want to provide cellular coverage to this sparsely populated county in
the future, he said. That would allow most cellphone users to receive
signals here.
Leary agreed that proliferation oftowers is not likely in this remote
county, as it costs $250 000 to $300 000 to establish a site, which is
then very expensive to maintain. There s the added cost of "backhaul
or connecting to a local telephone switch. Edge has talked with
Custertel about using its switch and fiber optic lines of the Syringa
network, which would benefit the co-op, Thornock said.
It makes economic sense for a company to build fewer, higher towers
Thornock said. O'Leary said technology is the biggest cost of siting a
tower, then steel and concrete. The higher the tower, the more
expensive the materials, so companies generally don t want to build
any higher than necessary, he said.
Harriet Henderson asked about Edge s plans for a tower network in
Custer County, and how that dovetails with the city tower. O'Leary
said those plans are on hold now. "I dont think we can build a system
that works for us with the ordinance the county now has " he said.
Thornock said Custertel would not divulge cell sites to a competitor
and he doubted Edge would either. While Thornock's draft ordinance
and the city's version both call for companies to give the city a master
plan of all towers proposed in the county, the draftstates that is
proprietary and not subject to public scrutiny.
Jan Holmgren asked whether it was possible for an unbiased, third
party with technical expertise, to verify height requirements, as it's
hard to put the fox in charge of the henhouse.
Councilwoman Sharon Allred said Thornock is the resident expert.
s watching out for us, I'm sure " she said.
Thornock had earlier said either Custertel or Edge would run computer
models to determine the best height for towers at different sites, taking
terrain and other factors into account.
The Challis Messenger. P.O. Box 405 . Challis, Idaho 83226
Telephone [phone] . Fax [phone]. E-mail: info(fYchallismessenger.com
Copyright ~ 2001-2004 Post Company. All rights reserved.
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4/25/2007