20030721Order No 29292.pdf

Office of the Secretary
Service Date
July21 2003
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE PETITION OF
IAT COMMUNICATIONS, INc. DBA NTCH-
IDAHO, INC. OR CLEAR TALK FOR
DESIGNATION AS AN ELIGIBLE
TELECOMMUNICATIONS CARRIER.
CASE NO. GNR- T -03-
IN THE MATTER OF THE APPLICATION
OF NPCR, INC. DBA NEXTEL PARTNERS
SEEKING DESIGNATION AS AN ELIGIBLE
TELECOMMUNICATIONS CARRIER.
CASE NO. GNR-03-
ORDER NO. 29292
On February 3 , 2003 and April 28 , 2003 respectively, IA T Communications, Inc. dba
NTCH-Idaho, Inc. or Clear Talk and NPCR, Inc. dba Nextel Partners filed Applications
requesting that the Commission designate them as "eligible telecommunications carriers" (ETC)
in specific areas in southeastern Idaho. After reviewing the pleadings the Commission found it
appropriate to process the Applications in a joint proceeding. Order No. 29240. In addition, the
Commission decided to process the Applications by Modified Procedure under the
Commission s Rules of Procedure. IDAPA 31.01.01.201-.204
On June 10, 2003 , the Idaho Telephone Association (ITA) filed a Protest, objecting
to the use of Modified Procedure to process this case. See Order No. 29240. ITA requested
instead that the Commission schedule this joint proceeding for a full evidentiary hearing.
Applicants Nextel Partners and Clear Talk filed responses on June 16 and 20 2003, respectively.
Each Company stated no opposition to IT A's request for an evidentiary hearing.
On June 17, 2003, Citizens Telecommunications Company of Idaho, Potlatch
Telephone Company, CenturyTel of Idaho and CenturyTel of the Gem State (Citizens and the
Protestants) filed joint Protests, Comments and a Motion for Stay.l Citizens ' and Protestants
Motion for Stay was filed pursuant to Commission Rules of Procedure 203 and 324. IDAP A
31.01.01.203 and .324 and no oral argument was requested. ITA filed its response in support of
1 The Commission granted intervention to Citizens in this case.
See Order No. 29248. The remaining companies
Potlatch Telephone Company, CenturyTel of Idaho and CenturyTel of the Gem State, state they did not attempt to
intervene because Clear Talk and Nextel Partners have not sought ETC status in their service territories. However
they contend they are rural telephone companies and any Commission decision on these ETC Applications will
affect them in the future.
ORDER NO. 29292
Citizens ' and Protestants ' Motion for Stay on June 26 , 2003. Nextel Partners and Clear Talk
filed responses in opposition to the granting of a stay on June 26, 2003.
After reviewing the pleadings regarding these matters, the Commission denies
Citizens 'and Protestants' Motion for Stay and grants ITA's request for an evidentiary hearing for
the reasons discussed below.
REQUEST FOR STAY
1. Request for Stay and IT A's Support
Citizens and Protestants have requested a stay until such time as the Federal
Communications Commission (FCC) issues a ruling in its Docket No. 96-45. They contend that
a decision by the FCC is anticipated towards the end of 2003 or the beginning of 2004. Citizens
and Protestants allege that not staying this proceeding could lead to several problems. For
example, they contend that competitors requesting ETC status in Idaho might end up being
judged by two entirely different sets of criteria-the existing test and a different test after the
FCC issues its order. They posit this could result in an unfair advantage as to one or more
competitive ETCs and/or a disadvantage to one or more incumbent local exchange carriers. In
addition, they allege that the amount of any potential universal service support may change
thereby affecting a decision to apply or withdraw. Finally, they allege that from the standpoint
of efficiency and costs, changes at the FCC level may even make the Idaho proceeding
unnecessary.
On June 26, 2003 , ITA filed its support for Citizens' and Protestants ' Motion. ITA
alleges that Docket No. 96-54 amounts to a complete re-evaluation of both substantive and
procedural requirements for participation in the Federal Universal Service Fund. ITA states that
at least one FCC Commissioner has already raised the issue of whether applicants such as Nextel
Partners and Clear Talk should receive ETC designations in rural telephone company study
areas. See ITA Protest at 7. Under these circumstances, ITA states it is in the public interest for
the Commission to stay these proceedings pending the FCC's decision.
2. Clear Talk and Nextel Partners ' Responses
Clear Talk alleges that pursuant to the Commission s Rules of Procedure the
Protestants" are not parties to this proceeding. See Response at 1-, citing Commission Rules
2 The Commission notes that the pleadings filed by the parties and Protestants in this case also address substantive
issues that cannot be resolved until the record is further developed.
ORDER NO. 29292
of Procedure 31-37. Therefore, Clear Talk contends they are not entitled to "appear at hearing or
argument, introduce evidence, examine witnesses, make and argue motions, state positions" or
otherwise participate in hearings or arguments. Thus, Clear Talk requests that the "Protest
Comments and Motion for Stay" filed on behalf of the Protestants be stricken from the record.
Response at 2.
Clear Talk also argues that Citizens ' Motion must be denied because granting it
would result in regulatory gridlock. In other words, staying all state proceedings based on the
possibility that federal law might change because of a pending FCC proceeding that has similar
issues is inappropriate. Clear Talk asserts that delivery of universal wireless service to rural
Idaho consumers should not be delayed on mere speculation that the current law may change at
some indefinite point in the future. Clear Talk alleges that it has already committed to providing
universal services in the areas noted in its Application and has been granted ETC designation in
Qwest-served exchanges in Idaho. See Order No. 29261. Clear Talk also contends that the only
issue for the Commission to consider now is whether designation of Clear Talk as an ETC in
rural exchange areas is in the public interest. Clear Talk further argues that the law is clear that
the Commission does not need to wait for FCC action to make that determination. Finally, Clear
Talk alleges that Citizens does not have standing to raise the argument that a subsequent change
in FCC policy would lead to an unfair advantage to one or more competitive ETCs. Clear Talk
requests that the Commission deny Citizens ' request for a stay.
Nextel Partners argues that Protestants' protest and comments must be summarily
rejected because they lack standing under Commission Rule of Procedure 203. Specifically,
Nextel Partners contends that the Protestants admit they will not be affected by the granting of
the Applications in this case because their service territories are not implicated. Thus, Nextel
Partners asserts that they do not meet the requirement of Rule 203 that states in pertinent part
that protests or comments may be filed only by "(aJny person affected by the proposal of the
moving party(. J"
N extel Partners also states that the FCC has to date issued 25 Reports and Orders
addressing universal service issues and has never suggested that a state commission stay its
consideration ofETC applications pending future FCC pronouncements. To the contrary, Nextel
Partners quotes language from the FCC'Twenty-Fifth Order on Reconsideration, Report and
Order in Docket No. 96-45 that encourages state commissions to continue to act expeditiously on
ORDER NO. 29292
applications from companies requesting ETC status. In the Matter of Federal-State Joint Board
on Universal Service, Twenty-Fifth Order on Reconsideration, Report and Order, Order, and
Further Notice of Proposed Rulemaking, CC Docket No. 96-FCC 03-115, 2003
21195264, ~ 26 (reI. May 21 2003).
Nextel Partners also contends that the request for stay is based on speculative
concerns that do not warrant delaying the processing of these Applications. Nextel Partners
states that it is committed to complying with any and all obligations the FCC presently or in the
future may require of an ETC in the provision of universal service. Consequently, the
Commission should not delay this proceeding because the FCC may in some undefined way and
at some unspecified time impose new or different criteria or obligations concerning the
designation of federal ETCs. This, Nextel Partners alleges, would prevent any competitive
provider from becoming eligible to receive support from the federal USF fund and therefore
substantially frustrate the Act's twin goals of promoting competition and preserving and
advancing universal service. In addition, Nextel Partners states that Citizens ' and Protestants
feigned concern for its competitors is plainly disingenuous and should be ignored.
Finally, Nextel Partners alleges that under well-established Idaho law, the
Commission must apply the substantive administrative rules in effect at the time a proceeding is
commenced. See Canal/Norcrest/Columbus Action Committee v. City of Boise 137 Idaho 377
48 P.3d 1266 (2002). Thus, the Company contends that to the extent a subsequent FCC ruling
may cause the Commission to commence its own rulemaking procedure to promulgate or modify
its rules governing the designation of federal ETCs, such rules could not be retroactively applied
and are therefore irrelevant to the Applications currently pending before the Commission. Nextel
Partners concludes that the Commission should deny Citizens ' and Protestants ' Motion for Stay.
3. Commission Decision
As a preliminary matter the Commission notes that Potlatch Telephone Company,
CenturyTel of Idaho and CentuiyTel of the Gem State did not seek to intervene in this
proceeding. Accordingly, Protestants do not have the rights of a party pursuant to Commission
Rule of Procedure 38. IDAPA 31.01.01.038. See also IDAPA 31.01.01.031.
In regard to the Motion to Stay, pursuant to Rule 324 of the Commission Rules of
Procedure:
ORDER NO. 29292
Any person may petition the Commission to stay any order, whether
interlocutory or final. Orders may be stayed by the judiciary according to
statute. The Commission may stay any order on its own motion.
IDAPA 31.01.01.324. Accordingly, the Motion for Stay filed by the Citizens and the Protestants
is appropriate. In considering this Motion we thoroughly reviewed the record in this case, the
statutory framework for review of ETC Applications and FCC Docket No. 96-45 as it pertains to
ETCs.
The Idaho Legislature has given the Commission the "full power and authority to
implement the federal telecommunications act of 1996(.
)"
Idaho Code 9 62-615. The
Telecommunications Act of 1996 provides that state commissions may designate common
carriers as ETCs. 47 US.C. 99 214(e)(2) and 254. In regard to FCC Docket No. 96-, Citizens
and Protestants correctly point out that the FCC is considering issues that relate to ETCs.
Specifically, the FCC directed the Federal-State Joint Board on Universal Service (Joint Board)
to "review certain of the Commission s rules relating to the high-cost universal service support
mechanisms to ensure that the dual goals of preserving universal service and fostering
competition continue to be fulfilled.
As the moving party, Citizens and Protestants have the burden of demonstrating that
their Motion for Stay should be granted. See generally Order No. 17436. The Commission finds
in general that the Motion rests largely on speculative concerns related to the FCC proceeding.
The Commission finds that these concerns are outweighed by the FCC's actions in this Docket.
The FCC has explicitly encouraged state commissions to continue to expeditiously process ETC
Applications:
We decline to adopt a rule at this time that would require state commissions
to resolve the merits of any request for designation under section 214(e)
within six months or some shorter period. We conclude that such action is
unnecessary at this time. In so doing, we note that a number of ETC
designation requests pending at the time of release of the Twelfth Report and
Order and Further Notice have been resolved by state commissions. We
commend these state commissions for resolving those designation requests.
We continue to encourage state commissions to act with the appropriate
analysis yet as expeditiously as possible on all such requests. In addition, we
note that a state s action on ETC designation requests may be reviewed under
section 253 as a potential barrier to entry. Although we continue to
Federal-State Joint Board on Universal Service CC Docket No. 96-, Order, FCC 02-307 (reI. Nov. 8, 2002)
(Referral Order).
ORDER NO. 29292
encourage states to address such requests in a timely manner, we find no need
for further action at this time.
In the Matter of Federal-State Joint Board on Universal Service, Twenty-Fifth Order on
Reconsideration, Report and Order FCC 03-115, 2003 WL 21195264 (reI. May 21, 2003)
(emphasis added) (footnotes omitted). In addition to this encouragement, the Commission has
not found directives in this Docket by the FCC or the Joint Board that order or suggest that states
should stay consideration of ETC Applications.
Citizens and Protestants also correctly point out that comments and reply comments
concerning the questions raised by the Joint Board and FCC were due on May 5 , 2003 and June
, 2003. Proposed Rule, Federal Communications Commission 47 C.R. Part 54, 68 FR
10429-01 (March 5 , 2003). However, no deadline has been established for the Joint Board to
make its recommendations to the FCC. Furthermore, once recommendations are made no
substantive change in the law will occur until the FCC enters its Order. It is unclear from the
record in Docket No. 96-45 when or if an Order will be entered let alone what it will contain.
Based on this uncertainty the Commission finds that it would be unfair to Nextel Partners and
Clear Talk to stay these proceedings.
Based on the foregoing, the Commission finds that Citizens and Protestants have
failed to carry their burden to demonstrate that these proceedings should be stayed. Accordingly,
the Motion for Stay is denied.
REQUEST FOR AN EVIDENTIARY HEARING
1. ITA's Protest
In support of its protest and request for evidentiary hearing the IT A alleges that in
order to be designated as an ETC a carrier must provide universal service offerings "throughout
the service area for which the designation is received.Protest at 2, quoting 47 US.c. 9
214( e)(1). ITA also contends that in areas served by rural telephone companies
, "
service area
means the company s "study area.See 47 U.C. 9214(e)(1). ITA states that a comparison of
Applicants ' coverage area maps with the rural telephone companies ' service maps on file with
the Commission demonstrates that they cannot meet the service area requirement for ETC
designation. Thus, ITA argues that on the face of the pleadings each Application fails to meet
the requirements for designation as an ETC in rural telephone company study areas. ITA
contends these misstatements call Clear Talk's and Nextel Partners' Applications into question.
ORDER NO. 29292
IT A also states that it has doubts that the Applicants are providing service within rural telephone
companies areas in accordance with applicable legal requirements and Commission policies.
Next, ITA contends that the Telecommunications Act of 1996 requires a finding by
the Commission that designation of additional ETCs in rural telephone companies ' service areas
is in the public interest. 47 US.C. 9 214(e)(2). ITA contends that both Applicants point to
competition with incumbent local exchange providers as the primary advantages to be derived
from their Applications. However, IT A alleges that there has been no showing by either
Applicant that, in the case of rural telephone company study areas, additional competition needs
to be subsidized by the federal Universal Service Fund or that such subsidization would be in the
public interest. ITA contends that the available evidence is to the contrary. Thus, ITA contends
granting the Applicants ' request for ETC status in rural telephone companies ' service areas
would be contrary to the public interest.
Based on the foregoing, ITA requests that the Commission order a full evidentiary
hearing, including discovery, to determine whether the Applicants should be granted ETC status
requested in the rural telephone companies ' service areas as designated by the Applications.
2. Clear Talk's and Nextel Partners ' Response
On June 16, 2003 , Nextel Partners filed a response to ITA's protest. First, the
Company does not oppose IT A's request for a hearing, and states that it looks forward to the
opportunity to demonstrate to the Commission why its Application should be granted. Second
Nextel Partners states that it strongly disagrees with ITA's claims that Nextel Partners
Application is deficient and with its assertion of what standard the Commission must apply to it.
On June 20, 2003 , Clear Talk filed its response to IT A's protest. Clear Talk does not
oppose ITA's request for a hearing and welcomes the opportunity to demonstrate its ability and
intent to fulfill the role of an ETC in the service areas in southeast Idaho that it has listed in its
Application. Clear Talk, like Nextel Partners, also strongly disagrees with ITA's arguments
regarding its ability to meet the qualifications necessary to be designated as an ETC by the
Commission in the specific areas listed in its Application.
3. Commission Decision
The Commission finds that IT A's protest and request for evidentiary hearing raise
valid questions of both fact and law that are disputed by Nextel Partners and Clear Talk. The
Commission finds that further development of the record is necessary to resolve these disputes
ORDER NO. 29292
and ultimately reach a decision on the merits of Clear Talk's and Nextel Partners' Applications.
In addition, the record needs further development because these Applications raise questions of
first impression in Idaho. Thus, to develop the record more fully the Commission finds that it
must hold an evidentiary hearing on the merits of these Applications rather than by processing
this case by Modified Procedure (i., by written submissions). Accordingly, the Commission
grants ITA's request for an evidentiary hearing.
In order to establish a schedule for this joint proceeding the Commission directs
counsel for the Commission Staff to arrange an informal conference/teleconference with the
parties. At this conference the Commission directs the parties to establish and then submit to the
Commission a proposed schedule for addressing all relevant matters in this case.
ORDER
IT IS HEREBY ORDERED that Citizens' and Protestants ' Motion for Stay is denied.
IT IS FURTHER ORDERED that the Idaho Telephone Association s Request for an
Evidentiary Hearing is granted.
IT IS FURTHER ORDERED that the Commission directs counsel for the
Commission Staff to arrange an informal conference/teleconference with the parties. At this
conference the Commission directs the parties to establish a proposed schedule for addressing all
relevant matters in this case. Once the parties agree upon a schedule the Commission directs
counsel for the Commission Staffto submit it for our review and possible adoption.
ORDER NO. 29292
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this ;1../
day of July 2003.
PAUL KJ LI.; , PRESIDEN
"""""""
4J~
MARSHA H. SMITH, COMMISSIONER
ATTEST:
Commission Secretary
O:GNRT0308 GNRTO316jh2
ORDER NO. 29292