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Home My WebLink About20070427Motion for a staff investigation.pdfGIVE SLEY LLP LAW OFFICES 601 W. Bannock Street PO Box 2720, Boise, Idaho 83701 TELEPHONE: 208 388-1200 FACSIMILE: 208 388-1300 WEBSITE: www.givenspursley.com Gary G. Allen Kelly T. Barbour Peter G. Barton Christopher J. Beeson Wiliiam C. Coie Michael C. Creamer Thomas E. Dvorak Roy Lewis Eiguren Jeffrey C. Fereday Martin C. Hendrickson Steven J. Hippier Debora K. Kristensen Anne C. Kunkel Jeremy G. Ladle Michaei P. Lawrence Franklin G. Lee David R. Lombardi John M. Marshali Kenneth R. McClure Kelly Greene McConnell Cynthia A. Meiillo Christopher H. Meyer L Edward Milier Patrick J. Miller Judson B. Montgomery Angela K. Neison Deborah E. Nelson W. Hugh O'Riordan, LLM. Angeia M. Reed Scott A. Tschirgi, LLM. J. Will Varin Conley E. Ward Robert B. White Terri R. Yost Via Hand Deliverv RETIRED Kenneth L Pursley Raymond D. Givens James A. McClure April 27, 2007 Licensed in New York and Washington DC Ms. Xan Allen Idaho Public Utilities Commission 472 W. Washington O. Box 83720 Boise, ID 83720-0074 , --.. 0;;::0 : "( :.,.., .-...::"' ;:.. Re:Edge Wireless Application for ETC Documentation IPUC Case No. EDG-07- _c-. , .. Dear Xan: I write to confirm that on April 25 2007 the Idaho Telephone Association ("ITA") filed the original and seven copies of Idaho Telephone Association s Motionfor a Staff Investigation in the above referenced matter. Page four of the Motion and Exhibits Band C have been redacted in the original and four of copies. The remaining three copies contain information designated by Edge Wireless as "highly confidential" that is subject to the terms of a Protective Agreement entered into between counsel for IT A and counsel for Edge Wireless. j/f Michael C. Creamer cc:Service List M CC : kdt S:\CLIENfS\1233\198\MCC Ltr to puc re Redacted Information.DOC Conley E. Ward (ISB No. 1683) Michael C. Creamer (ISB No. 4030) GIVENS PURSLEY LLP 601 W. Bannock Street O. Box 2720 Boise, ID 83701-2720 Telephone No. (208) 388-1200 Fax No. (208) 388-1300 cew~givenspursley .com mcc~givenspursley. com iDOl ;\?5 :'( 38 It " i-: i )1 lLl'II~:. ~(; J'~8;; Attorneys for Idaho Telephone Association BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION IN THE MATTER OF THE PETITION OF EDGE WIRELESS, LLC FOR DESIGNATION AS AN ELIGIBLE TELECOMMUNICATIONS CARRIER UNDER 47 U.C. 9214(e)(2) Case No. EDG-07- IDAHO TELEPHONE ASSOCIATION' MOTION FOR A STAFF INVESTIGATION The Idaho Telephone Association ("IT A"), by and through its attorneys Givens Pursley LLP, files this Motion for a Staff Investigation as more particularly described herein. STATEMENT OF THE CASE On January 22, 2007, Edge Wireless, LLC ("Edge" or Applicant) filed with the Idaho Public Utilities Commission ("Commission ) an Application for Designation as an Eligible Telecommunications Carrier. Edge s application requests an eligible telecommunications carrier ETC") designation for its wireless telecommunications service within the service areas of the following incumbent local exchange carriers ("ILECs ): Qwest Corporation ("Qwest" CenturyTel ofIdaho ("Century ), Albion Telephone Company ("Albion ), Custer Telephone Cooperative, Inc. ("Custer ), Direct Communications-Rockland ("Direct Communications IDAHO TELEPHONE ASSOCIATION'S MOTION FOR A STAFF INVESTIGATION - Page 1 of7 S:\clients\123J\198\ITA Motion for Staff Investigation.DOC Filer Mutual Telephone Company ("Filer ), Fremont Telecom ("Fremont"), Mud Lake Telephone Cooperative Association ("Mud Lake ), Project Mutual Telephone Cooperative Association ("Project Mutual"), and Silver Star Telephone Company ("Silver Star ). All of these ILECs except Qwest are "rural telephone companies" as that term is defined in 47 US.C. 9 153(37). In Order No. 30240, the Commission issued its Notice of Application and Notice of Modified Procedure in this matter. The Idaho Telephone Association! intervened and filed its Protest and Comments on March 13 2007. The Commission thereafter provided an additional 28 days for further discovery, and directed the parties to then report whether hearings were desired. For the reasons stated below, the ITA does not at this time request hearings, but it respectfully requests that the Commission direct its Staff to conduct further investigations and issue a report to the Commission and Parties for the reasons described below. ARGUMENT An applicant for ETC status within the service territory of a rural telephone company must satisfy a two part test. At the outset, the applicant must demonstrate the ability to provide supported services throughout the area for which the designation is sought. Section 214( e)(1) of the Telecommunications Act of 1996 states that an applicant for ETC status: shall, throughout the service area for which such designation is received- (A) offer the services that are supported by Federal universal support mechanisms under section 254 . . . ; and (B) advertise the availability of such services and the charges therefore using media of general distribution. 1 The ITA is authorized to represent member companies in regulatory proceedings and in other public policy matters. ITA member companies include: Albion Telephone Company, Cambridge Telephone Company, Custer Telephone Cooperative, Inc., Farmers Mutual Telephone Company, Filer Mutual Telephone Company, Inland Telephone Company, Midvale Telephone Company, Mud Lake Telephone Cooperative Association, Project Mutual Telephone Cooperative Association, Direct Communications - Rockland, Rural Telephone Company, Silver Star Telephone Company, Oregon-Idaho Utilities, and Fremont Telecom. IDAHO TELEPHONE ASSOCIATION'S MOTION FOR A STAFF INVESTIGATION - Page 2 of 7 S:\clients\I233\198\IT A Motion for StaffInvestigation.DOC 47 US.C. 9214(e)(1). Section 214(e)(5) further provides: In the case of an area served by a rural telephone company "service area means such company s "study area" unless and until the Commission and the States after taking into account recommendations of a Federal-State Joint Board instituted under section 41 O( c), establish a different definition of service area for such company. Section 54.101 of the Code of Federal Regulations essentially repeats this statutory language. In addition, an applicant for ETC status in a rural telephone company service area must demonstrate to the Commission, and the Commission must find, that an additional ETC designation "is in the public interest." 47 US.C. S 214(e)(2). In its Order No. 29841 , this Commission adopted, with minor modifications the public interest standards promulgated by the Federal Communications Commission ("FCC"In the Matter of Federal-State Joint Board On Universal Service CC Docket 96-45 (March 17 , 2005). The initial difficulty with Edge s Application is that it cannot possibly meet the first part of this test in all the service areas for which it is seeking an ETC designation. In its Application at page 3 , Edge states "Edge serves all the wire centers in all of the rural study areas listed in Exhibit C." This is manifestly false. Because Edge has designated virtually all of the substantive information about its network as proprietary and confidential, ITA counsel's discussion of Edge s network with ITA members has been quite limited. However, when shown Edge s statement cited above, several members reported that it could not possibly be true because Edge has no facilities at all in one or more of their wire centers. As an example, the IT A has attached to this pleading as Exhibit A, the Affidavit of Dennis Thornock, who states that Edge has no facilities of any kind in any of Custer s wire centers.Furthermore, as Mr. Thornock' IDAHO TELEPHONE ASSOCIATION'S MOTION FOR A STAFF INVESTIGATION - Page 3 of 7 S:\clients\1233\198\ITA Motion for Staff Investigation.DOC Affidavit points out, thorough coverCige of Custer s service area would require numerous cell sites and other facilities. The ITA members' reports appear to be confmned by Edge s Confidential, Exhibit (attached for convenience as Exhibit B), which shows: ? . ' Based on this i11forkation~aI1d a ~eview of Ed~e' s coverag~: maps ' the ITA believes that Edge: ... ... ,.... . Furthermore, Edge s two year build-out plan (Exhibit D- 2, attached for convenience as Exhibit B), does not In addition to those wire centers where Edge does not provide any service, a review of Edge s coverage map, attached as Exhibit C, suggests to ITA counsel that there are Presumably, these are the least dense and highest cost segments of those we centers. In these wire centers, Edge s Application is, in effect, a request fpr ETC designation in a partial wire center. This Commission has previously rejected such applications, on the IDAHO TELEPHONE ASSOCIATION'S MOTION FOR A STAFF lJ.~VESTIGATION - F'age 4 of7S:\clienla\ 123:1\1 98\IT A Motion for StaffInvestigation.DOC grounds that they raise concerns about "cream skimming.See Order No. 29541 at 16- l8. Rural cream skimming occurs when competitors seek to serve only the low-cost high revenue customers in a rural telephone company s study area. This is a concern because universal service support is calculated based on a study area- wide average of a rural telephone company that serves customers in both high cost and low cost areas throughout its study area. Commission Order No. 29541 at 16 (emphasis original). Under normal circumstances, the IT A would seek further discovery in the form of access to Edge s facilities and engineering documents to confirm that Edge has no facilities in a number of wire centers and to test whether it is cream skimming in those wire centers where it is providing only partial service. However, the ITA does not believe the public interest would be well served by establishing the precedent that competitors, or potential competitors, can use Commission proceedings as the basis for a detailed investigation of another company s engineering records and facilities. Presumably, Edge would agree with this sentiment. Fortunately, the Commission seems to have anticipated this difficulty. In Order No. 29841 , the Commission stated: In instances where an ETC applicant seeks designation below the study level of a rural telephone company, the Commission shall also conduct a cream skimming analysis that compares the population density of each wire center in which the ETC seeks designation against that of the wire centers in the study area in which the ETC does not seek designation. Order No. 29841 at 16 (emphasis added). The IT A is well aware, of course, that Edge does not in its pleadings seek a designation below the study area level. But that fact cannot be dispositive, or the Commission s rule would be meaningless. If the mere fact that an applicant files on an entire service area, even though it IDAHO TELEPHONE ASSOCIATION'S MOTION FOR A STAFF INVESTIGATION - Page 5 of7 S:lclientsI12331198\IT A Motion for StaffInvestigation.DOC does not intend to serve all the wire centers or the entirety of some wire centers, avoids an appropriate cream skimming analysis, then of course that is what applicants will do , and the Commission s legitimate concerns will never be addressed. The IT A is also well aware that the Staff, in its Comments, did not think potential cream skimming is a concern in this case. But that is because the Staff mistakenly took at face value Edge s false representation that it "serves all the wire centers" covered in its Application. This led the Staff to the erroneous conclusion that "the Company avoids the specter of cream skimming as the Application does not include partial wire centers and addresses all wire centers in a service area." Staff Comments at 7 (emphasis added). Investigation ofthe facts in the Edge exhibits and on the ground would demonstrate otherwise. Therefore, the ITA respectfully moves this Commission, pursuant to Order No. 29841 for an Order directing its Staff to conduct a further investigation to determine: (1) if Edge in fact lacks facilities and the ability to provide service in the wire centers listed above, (2) whether Edge is serving only the most profitable and least cost areas of those wire centers where it is serving only a portion of the area, and (3) whether Edge s claimed Network Coverage is accurate. The ITA further requests that the Staff be directed to issue a written report containing its findings, to be served on all Parties who have executed the Protective Agreement. DATED this 2Na.day of April 2007. IDAHO TELEPHONE ASSOCIA nON'S MOTION FOR A STAFF INVESTIGA nON - Page 6 of 7 S:lclientsI12331198\ITA Motion for Staff Investigation. DOC CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 25th day of April 2007, I caused to be served a true and correct copy of the foregoing document by the method indicated below and addressed to the following: S. Mail Hand Delivered Overnight Mail Facsimile Email S. Mail Hand Delivered Overnight Mail Facsimile Email S. Mail Hand Delivered Overnight Mail Facsimile Email Commission Secretary Idaho Public Utilities Commission 472 W. Washington Street O. Box 83720 Boise, ID 83720-0074 Mark P. Trinchero Davis, Wright & Tremaine LLP 1300 S.W. 5th Ave., Suite 2300 Portland, OR 97201 Email: marktrinchero~dwt.com Molly O'Leary Richardson & O'Leary, PLLC O. Box 7218 Boise, ID 83707 Email: molly~richardsonandoleary.com I HEREBY CERTIFY that on this 25th day of April 2007, I caused to be served a true and correct copy ofthe foregoing document ,with Page 4 and Exhibits B and C redacted, by the method indicated below and addressed to the following: Dean J. Miller McDevitt & Miller LLP 420 W. Bannock Street O. Box 2564 Boise, ID 83701-2564 Email: joe~mcdevitt-miller.com S. Mail Hand Delivered Overnight Mail Facsimile Email Nathan Glazier Regional Manager, State Affairs AllTel Communications, Inc. 4805 Thistle Landing Dr. Phoenix, AZ 85044 Email: nathan.g1azier~alltel.com S. Mail Hand Delivered Overnight Mail Facsimile Email cA~ Michael C. Creamer IDAHO TELEPHONE ASSOCIATION'S MOTION FOR A STAFF INVESTIGATION - Page 7 of 7 S:ICLIENTSI12331198\ITA Motion for Stafflnvestigation.DOC EXHIB IT A Conley E. Ward (ISB No. 1683) Michael C. Creamer (ISB No. 4030) GIVENS PURSLEY LLP 601 W. Bannock Street O. Box 2720 Boise, ID 83701-2720 Telephone No. (208) 388-1200 Fax No. (208) 388-1300 cew~givenspursley.com mcc~givenspursley.com Attorneys for Idaho Telephone Association BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION IN THE MATTER OF THE PETITION OF EDGE WIRELESS , LLC FOR DESIGNATION AS AN ELIGIBLE TELECOMMUNICATIONS CARRIER UNDER 47 US.c. 9214(e)(2) Case No. EDG-07- AFFIDAVIT OF DENNIS L. THORNOCK IN SUPPORT OF IDAHO TELEPHONE ASSOCIATION' MOTION FOR A STAFF INVESTIGATION STATE OF IDAHO ) ss. County of Ada DENNIS L. THORNOCK, being first duly sworn upon oath, deposes and states as follows: 1. My name is Dennis L. Thornock and I am the General Manager of Custer Telephone Cooperative ("Custer ), headquartered in Challis, Idaho. 2. Custer is an Incumbent Local Exchange Carrier that provides telecommunications service to subscribers throughout large portions of Custer and Lemhi Counties in Idaho. Custer service territory is divided into four wire centers: Challis, Clayton, Elk Bend and May. AFFIDA VIT OF DENNIS THORNOCK - Page 1 of 3 S:lclientsI12331198\Affidavit of Dennis Thornock.DOC 3. In my capacity as Custer s General Manager, I am generally familiar with the technology and facilities required to provide cellular telephone service. I am also familiar with the geography and topography of Custer s service area. 4. I have read the Application of Edge Wireless , LLC in the above entitled case now before the Idaho Public Utilities Commission. On page 3 of that Application, the Applicant states , " Edge serves all the wire centers in all of the rural ILEC study areas listed in Exhibit C. All four Custer wire centers are listed in Exhibit C. (Exhibit C also erroneously lists Stanley as a Custer wire center. That exchange is actually served by Midvale Telephone Exchange). 5. I can state with certainty that the quoted statement from the Application is false with regard to Custer. To the best of my knowledge, Edge Wireless has no facilities at all within any of the four Custer wire centers. Further, I can also state with certainty that providing wireless telecommunication service to any significant portion of Custer s territory would require multiple cell towers and other facilities. DATED this "Z.-:5 day of April 2007. eX' 4 Dennis L. Thornock Subscribed and sworn to, before me, this day of April 2007. ,."""" " "'- '0" O""" " ~ po ......~.. ' "1 I:Q;- IP '\ 1(...,.~~k1' \ :~:..s. ..:. ~~..... #11' :-. : it to PU?J '" . . . 12 : ':."'. ~. .. "".:#. l' .....,.... '\') . ..~ .I:t TE O~ "", ............" Notary Public for the State of Idaho Residing at ~L!lO ,:z::t) My Commission Expires .5 lId- AFFIDAVIT OF DENNIS THORNOCK - Page 2 of 3 S:lclientsI12331198\Affidavit of Dennis Thornock.DOC EDG- T -07 - EXHIBITS B AND C ARE CONFIDENTIAL AND WERE NOT SCANNED CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 25th day of April 2007, I caused to be served a true and correct copy of the foregoing document by the method indicated below and addressed to the following: Dean J. Miller McDevitt & Miller LLP 420 W. Bannock Street O. Box 2564 Boise, ID 83701-2564 Email: joe~mcdevitt-miller.com u.s. Mail Hand Delivered Overnight Mail Facsimile Email u.S. Mail Hand Delivered Overnight Mail Facsimile Email S. Mail Hand Delivered Overnight Mail Facsimile Email S. Mail Hand Delivered Overnight Mail Facsimile Email Commission Secretary Idaho Public Utilities Commission 472 W. Washington Street O. Box 83720 Boise, ID 83720-0074 Mark P. Trinchero Davis, Wright & Tremaine LLP 1300 S.W. 5th Ave., Suite 2300 Portland, OR 97201 Email: marktrinchero~dwt.com Molly O'Leary Richardson & O'Leary, PLLC O. Box 7218 Boise, ID 83707 Email: molly~richardsonandoleary.com Nathan Glazier Regional Manager, State Affairs AllTel Communications, Inc. 4805 Thistle Landing Dr. Phoenix, AZ 85044 Email: nathan.glazier~al1tel.com S. Mail Hand Delivered Overnight Mail Facsimile Email t:ff AFFIDA VIT OF DENNIS THORNOCK - Page 3 of 3 S:ICLIENTSI12331198\Affidavit of Dennis Thomock.DOC