ROBERTS.docx

January 5, 1999
Joy Robertson, Asst. Vice President
Regulatory & Government Affairs
CommNet Cellular
PO Box 6606
8350 E Crescent Parkway, Suite 400
Inglewood, CO 80155-6606
RE: Fixed Cellular Services in Idaho
Dear Ms. Robertson:
In your recent letter of December 26, 1998, you asked several questions regarding CommNet’s consideration of offering fixed cellular service in Idaho.  In particular, you asked about an applica­tion process, applicable rules and regulations, and the status of a universal service fund.  I assume by “fixed” wireless service you are referring to situations where the customer’s wireless equipment is “fixed” or permanent at a single location.  An example of such a fixed system would be basic exchange telecommunications radio systems (BETRS).  
In answer to your question about regulatory oversight, telecommunications services in Idaho are subject to three different levels of regulation.  First, incumbent LECs providing local access service are generally subject to rate regulation under Title 61 of the Idaho Code.  Second, long-distance carriers (except GTE), new and competitive LECs, and the predominant LEC in southern Idaho, U S WEST, are subject to partial regulation under Title 62.  Under this second form of regulation, the Commission does not establish the rates for services other than basic local exchange service.  Non-basic services (MTS, WATS, custom calling features) are not rate regulated by the Commission.  Finally, there are those telecommunication services which are considered “exempt” from the Commission’s jurisdiction.  Services such as one-way video programming, “radio paging, mobile radio telecommunication services, [and] answering services” are exempt from the Commission’s Title 61 or Title 62 jurisdiction.  Idaho Code § 62-603(13) (emphasis added).  Although this last category of services is “exempt” from regulation, recent enactments of the Idaho Legislature now provide that wireless telecommunications services contribute to the state’s second universal service fund and help fund the Idaho Telecommunication Assistance Service Program (low-income assistance).  See Idaho Code §§ 62-610C(5) and 56-901(2).
As you have undoubtedly noted, “mobile radio telecommunications services” are generally exempt from the Commission’s jurisdiction.  Based on your letter and my assumption set out above, CommNet’s fixed cellular service may not clearly fall in the exempt category.  Over the years, Staff has asserted that fixed cellular service should be subject to the same type of regulation as new competitive LECs—non-rate regulated but subject to the same non-economic regulatory requirements applicable to all telephone corporations.  Idaho Code § 62-622(5).  I have included for your information the pertinent statutes under Title 61 and Title 62, the application procedures to be a competitive LEC, and other documents that you may find pertinent.
You also inquired about the status of the state’s universal service fund.  In reality, the Commission has two USF funds.  The first USF has been in operation since 1988 pursuant to Idaho Code § 62-610.  It provides assistance to those LECs serving in high-cost areas.  The eligibility criteria for disbursements from this fund include: 1) one-party single-line rates in excess of 125% of the statewide weighted average rates for residential and business local service; and 2) MTS/WATS access service rates in excess of 100% of the weighted statewide average.  See Idaho Code § 62-610(3).  The second USF was authorized by the Legislature in 1998 and is codified in Idaho Code §§ 62-610A through -610F.  This fund is not yet operational because it is based on forward looking cost methodology and is waiting for federal USF developments.
I hope this information proves helpful.  If you have further questions, please contact me at [phone].  Best wishes for a prosperous new year.
Sincerely,
Donald L.  Howell, II
Deputy Attorney General
DLH/vld
Enclosure
cc:Joe Cusick
Rita Scott
dh:roberts