20040817Petition for Reconsideration of Clear Talk.pdf

, "
Molly O'Leary, Esq. (ISB # 4996)
Richardson & O'Leary, PLLC
99 E. State Street, Suite 200
Eagle, Idaho 83616
[phone] (Voice)
[phone] (Facsimile
Idaho Public Utilities Commission
Office of the SecretaryRECEIVED
AUG 1 3 2004
Boise, Idaho
mo 11 y~ri chardsonando I eary. com
BEFORE THE
IDAHO PUBLIC UTILITIES COMMISSION
In the Matter of the Petition of IA T
Communications, Inc., d.a. NTCH-Idaho, Inc. )
or Clear Talk, for Designation as an Eligible
Telecommunications Carrier.
CASE NO. Docket No. GNR-O3-
PETITION FOR
RECONSIDERARTION AND
REHEARING OF IAT
COMMUNICATIONS, INC., d/b/a/
CLEAR TALK
In the Matter of the Application ofNPCR, INC. )d/b/a NEXTEL PARTNERS
Seeking Designation as an Eligible
Telecommunications Carrier that may receive
Federal Universal Service Support.
CASE NO. Docket No. GNR-O3-
COMES NOW, IAT Communications, Inc. dba NTCH-Idaho, Inc or Clear Talk ("Clear
Talk") and, through undersigned counsel, files this Petition for Reconsideration and Rehearing.
PROCEDURAL HISTORY
Following a hearing on this matter before the Idaho Public Utilities Commission ("the
Commission ) on December 9th and 10th of2003 , the parties filed post-hearing briefs on January
, 2004.
On January 27 2004, NPCR, Inc. dba Nextel Partners ("Nextel"), filed a motion for the
Commission to take judicial notice of an order of the Arkansas Public Service Commission
granting it Eligible Telecommunications Carrier ("ETC") status in the exchanges of
Southwestern Bell Telephone Company-Arkansas, and asked the Commission to admit the
Arkansas commission s order as Exhibit Ill. On January 30, 2004, the Idaho Telephone
Association ("ITA") and Citizens Telecommunications Company of Idaho ("Citizens ) filed a
joint motion requesting that the commission take official notice of the Federal Communications
Commission s ("FCC") decision in In the Matter of Federal-State Joint Board on Universal
Service, Virginia Cellular, LLC, CC Docket No. 96-, FCC 03-0338 (2004). On February 12
2004, ITA and Citizens filed a second joint motion requesting that the Commission take official
notice of a February 10, 2004 Nebraska Public Service Commission order denying an ETC
application filed by Nextel Partners. On March 9, 2004, this Commission granted Nextel'
motion, as well as the joint motions of IT A and Citizens. Order No. 29442.
On February 24 , 2004 Nextel filed a Supplemental Filing to Address the FCC'Virginia
Cellular Decision. April 2, 2004, Clear Talk also filed a supplemental brief to address the FCC'
Virginia Cellular Decision and to clarify the scope of its ETC request ("Clear Talk Supplemental
Post-Hearing Brief'
On April 7, 2004, ITA and Citizens filed a third joint notion requesting the Commission
to take official notice of the Recommended Decision of the Federal-State Joint Board on
Universal Service in Case No. 96-, dated February 27 2004. On April 19, 2004, ITA and
Citizens filed a fourth joint motion requesting the Commission to take official notice of the
FCC's decision in In the Matter of Federal-State Joint Board on Universal Service, Highland
Cellular, Inc. Petition for Designation as an Eligible Telecommunications Carrier in the
Commonwealth of Virginia. This Commission granted ITA's and Citizens' third and fourth joint
CLEAR TALK'S PETITION FOR
RECONSIDERATION AND REHEARING - 2
motions on May 13, 2004. Order No. 29498.
On July 23 2004, the Commission issued Order No. 29541 denying Clear Talk'
Application. The Commission based its denial on the following rationales:
1. Clear Talk requested ETC designation only for the highest density, lowest cost
exchanges and wire centers in its FCC-licensed service areas. Order No. 299541 at p. 17.
2. Clear Talk requested partial wire center designation in unidentified study areas of
the incumbent rural telephone companies. Order No. 29541 at p. 18.
3. Clear Talk has been providing service in the rural areas it requests ETC
designation since 2000 without USF subsidies. Order No. 29541 at p. 19.
4. Designating Clear Talk as an ETC would have a negative impact on the Universal
Service Fund ("USF"
).
Order No. 29541 at p. 19.
II.
ARGUMENT FOR RECONSIDERATION AND REHEARING
Clear Talk believes that the Commission s decision is based on an inaccurate and
incomplete review of the record before it, and is not supported by substantial evidence. Clear
Talk will address each of the Commission s stated rationales for its decision, in turn, below.
Clear Talk Requested Designation As An ETC Throughout The Geographic
Areas That Are Coterminous With Its FCC Basic Trading Area ("BT A") Licenses.
By law, Clear Talk cannot serve areas where it is not licensed by the FCC. Therefore
neither Clear Talk nor any wireless carrier can request ETC designation outside its BT A license
area. The FCC has recognized this limitation as an exception to concerns regarding so-called
cream-skimming" or "cherry-picking Highland Cellular CC Docket No. 96-, FCC 04-37 at
~ 26, 2004 WL 770088 (2004).
Clear Talk testified that it was requesting ETC designation for all exchanges and all wire
centers within its BTA licensed areas. Tr. p. 368, L. 24 - p. 370, L. 4.; p. 418 , L. 24, - p. 419, L.
1; p. 420, LL. 4-11. In addition, to clarify any misunderstanding regarding the scope of its
CLEAR TALK'S PETITION FOR
RECONSIDERATION AND REHEARING - 3
application, Clear Talk filed a supplemental map with its Supplemental Post-Hearing Brief. That
map clearly shows that all of Project Mutual's exchanges are within Clear Talk's BTA 451 , for
which it has committed to provide universal service throughout. Clear Talk Supplemental Post-
Hearing Brief at 4; Exhibit A to Clear Talk Supplemental Post-Hearing Brief; Tr. p. 368, L. 24
p. 370, L. 4.; p. 418, L. 24, - p. 419, L. 1; p. 420, LL. 4-11. The supplemental map also clearly
shows that all of Citizens' Aberdeen and Springfield exchanges are within Clear Talk's BTA
202, for which it has committed to provide universal service throughout. Id. The map also
shows that Citizens' Carey exchange is within Clear Talk's BTA 451 , for which it has committed
to provide universal service throughout. Id. The map also clearly shows that all Fremont
Telecom exchanges are within Clear Talk's BTA 202, for which it has committed to provide
universal service throughout. Id. As the map clearly shows, there is no instance where Clear Talk
has declined to accept the responsibilities of an ETC for an exchange and/or wire center that falls
within its FCC-determined BT A license areas.
Furthermore, apart from the self-serving, unsubstantiated testimony of Daniel
Trampush, who testified on behalf of IT A and Citizens, there is no evidence in the record as to
the population densities of the exchanges and/or wire centers that are within Clear Talk's BTAs.
Thus, there is no support in the record for the Commission s finding that
, "
the population of
these omitted exchanges and partial wirecenters compared to those that Clear Talk wishes to
serve are widely disparate." Order No. 29541 at 17.
Clear Talk did not bid on its federally auctioned BT A licenses based on some grand
scheme to cherry-pick the highest density, lowest-cost exchanges of t~e rural ILECs ' study areas.
Tr. p. 386, L. 17 - p. 387, L. 9. Clear Talk requested ETC designation throughout its federally
licensed BTAs without regard to the relative profitability of the individual exchanges and/or wire
CLEAR TALK'S PETITION FOR
RECONSIDERATION AND REHEARING - 4
centers. Thus, there is no evidence in the record that Clear Talk's application is based on or
motivated by "cream skimming Highland Cellular at ~ 26.
B. Clear Talk Requests the Opportunity, Upon Rehearing, to Provide
Additional Evidence Regarding the Partial Wire Center Issue.
Although Clear Talk stated in the Direct Testimony of Glenn Ishihara that, to the extent
any of its BT As do not include an entire wire center it was requesting partial wire center
designation, it does not appear that there is, in fact, any issue regarding a partial wire center
designation. Clear Talk respectfully request the opportunity, upon rehearing, to provide the
Commission with additional evidence to clarify any remaining uncertainty regarding the partial
wire center issue.
Furthermore, in the Highland Cellular decision, cited by the Commission, the FCC did
not use Highland Cellular s request for partial wire center designation as a basis for a wholesale
denial of its ETC application. Rather, it simply denied Highland Cellular s application for ETC
designation for any partial wire centers. Highland Cellular at ~ 34. The FCC based this decision
on its belief that an ETC should be required to serve an entire community. Id. at ~ 33. Clear
Talk's BTAs are coterminous with county lines, which the FCC noted typically include entire
wire centers -- the minimum geographic area for ETC designation identified by the FCC in
Highland Cellular. Id.
Clear Talk Cannot Expand its Rural Idaho Coverage into Higher- Cost
Areas Without USF Support
As previously stated, Clear Talk's Application for ETC designation throughout its BTAs
is not motivated by a desire to lower its costs in the areas it already serves. Rather, it intends to
advance its deployment of wireless services into higher cost areas that it could not otherwise
serve. Tr. p. 441 , LL 8 - 15; Tr. p. 472, L. 14 - p. 473, L. 20. Where necessary, Clear Talk will
CLEAR TALK'S PETITION FOR
RECONSIDERATION AND REHEARING - 5
deploy services via the facilities of other facilities-based carriers. Tr. p. 356, LL. 16 - 20. Clear
Talk's services will include wireless local loop service, where necessary, to provide stronger
transmitting and receiving capabilities than traditional mobile handsets. Tr. p. 356, L. 21 - p.
360, L. 2. With USF support, Clear Talk is committed to providing service throughout its
federally licensed BT As. Tr. p. 360, LL. 5 - 24.
The Commission s denial of Clear Talk's Application based on the theory that Clear Talk
is already providing the service, therefore it doesn t need USF support, misconstrues the record
and serves to deny Idaho citizens in higher-cost service areas the benefit of universal wireless
servIce.
Bringing Additional Universal Service Funds into Idaho is in Idaho s Public
Interest
In its "public interest" analysis pursuant to Section 214( )(2) of the Telecommunications
Act of 1996, the Commission is charged with weighing the relative costs and benefits of granting
ETC designation to more than one carrier in a rural study area. 47. U.C. ~ 214(e)(2). At a
minimum, that analysis should consider the benefits to rural Idaho consumers of universal
wireless service in high-cost areas that will otherwise go unserved, as well as the benefits to
Idaho s rural economies through the increased flow ofUSF support into rural Idaho. The
Commission s decision, however, focused on an undefined, unquantified but admittedly "small"
negative impact on the federal USF, without giving any weight to the overall economic benefit of
increasing the flow ofUSF support into rural Idaho or the very tangible benefit of bringing
wireless service to unserved, high-cost areas. Order No. 29541 at 19. Rather than engaging in
any meaningful weighing of the costs versus the benefits of granting Clear Talk's ETC
Application based on evidence in the record, the Commission simply adopted the dissenting
opinion of FCC Commissioner Kevin J. Martin in Highland Cellular. Order No. 29541 at 19.
CLEAR TALK'S PETITION FOR
RECONSIDERATION AND REHEARING - 6
On the other hand, Commissioner Smith, while acknowledging a concern regarding the
growth in demands on the federal USF, correctly noted in her dissent that the Commission
Section 214(e)(2) charge is to weigh the costs and the benefits of granting Clear Talk's ETC
Application based on the current state of the law, as the FCC majority did in Highland Cellular.
Highland Cellular CC Docket No. 96-, FCC 04-37 at ~ 25, 2004 WL 770088 (2004).
CONCLUSION
For the foregoing reasons, Clear Talk respectfully requests the Commission to reconsider
its denial of Clear Talk's ETC Application, and requests an evidentiary hearing on any issue
affecting Clear Talk's Application for which the Commission believes it currently has
insufficient information.
In addition, Clear Talk reiterates its willingness to enter into a formal Stipulation to meet
the competitive ETC designation standards enunciated by the FCC in Virginia Cellular. Clear
Talk Supplemental Post-Hearing Brief at pp. 2 - 3.
RESPECTFULLY SUBMITTED, this 13th day of August, 2003.
SON & O'LEARY, PLLC
CLEAR TALK'S PETITION FOR
RECONSIDERATION AND REHEARING - 7
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 13th day of August, 2004, I caused a true and
correct copy of the foregoing PETITION FOR RECONSIDERATION AND REHEARING
OF CLEAR TALK to be served by the method indicated below, and addressed to the following:
Jean Jewell
Idaho Public Utilities Commission
472 West Washington Street
Post Office Box 83720
Boise, Idaho 83720-0074
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Dean J. Miller, Esq.
420 West Bannock
Post Office Box 2564-83701
Boise, Idaho 83702
[phone] (Fax)
ioe~mcdevitt-miller.com
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Philip R. Schenkenberg, Esq.
2200 First National Bank Building
332 Minnesota Street
St. Paul, Minnesota 55101
pschenkenber~~ bri ggs. com
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Conley Ward
Givens Pursley LLP
277 North 6th Street, Suite 200
Post Office Box 2720
Boise, Idaho 83701
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mail to: cew~ci venspursl ey. com
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Lance A. Tade, Manager
State Government Affairs
Citizens Telecommunications Company of
Idaho
4 Triad Center, Suite 200
Salt Lake City, UT 84180
ltade~czn.com
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CLEAR TALK
CERTIFICATE OF SERVICE -
Charles H. Creason, Jr.
President and General Manager
Project Mutual Telephone Cooperative
Association, Inc.
507 G Street
Post Office Box 366
Rupert, Idaho 83350
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Weldon Stutzman, Deputy AG
Idaho Public Utilities Commission
472 West Washington Street
Boise, Idaho 83720-0074
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wstutzma~puc. state.id.
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Clay Sturgis, Senior Manager
MOSS ADAMS LLP
601 Riverside, Suite 1800
Spokane, WA 99201-0063
clays~mossadams.com
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Morgan W. Richards, Esq.
P. O. Box 1632
Boise, Idaho 83701
mwrlaw~cableone.net
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Mary S. Hobson
toel Rives LLP
101 S. Capitol Blvd, Suite 1900
Boise, Idaho 83702-5958
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mshobson~stoel.com
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CLEAR TALK
CERTIFICATE OF SERVICE - 2
Robert M. Nielsen
548 E Street
Post Office Box 706
Rupert, Idaho 83350
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Signed: -
CLEAR TALK
CERTIFICATE OF SERVICE - 3