20051024final order no 29898.pdf

Office of the Secretary
Service Date
October 24, 2005
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION
OF IDAHO BIG SKY TELECOM FOR A
CERTIFICATE OF PUBLIC CONVENIENCE
AND NECESSITY TO PROVIDE LOCAL
EXCHANGE TELECOMMUNICATIONS SERVICES.
CASE NO. GNR-O3-
ORDER NO. 29898
In April 2003 Idaho Big Sky Telecom (Idaho Big Sky or IBST) filed an Application
for a Certificate to provide local, long-distance, cellular and Internet services within Idaho.
Idaho Big Sky is headquartered in Hallandale, Florida and operates as a general partnership.
Two of the four partners are Nicholas Cuneo, Jr. (Managing General Partner) and James
Bramble. In its Application, IBST stated that it intended to act as a CLEC and as a reseller of
telecommunications services under contract with Qwest Corporation. On August 20, 2003 , the
Commission issued a Notice of Application and Notice of Modified Procedure soliciting
comments on Idaho Big Sky s Application. For reasons set out below, we deny the Application.
THE INITIAL COMMENTS
In response to the Notice of Modified Procedure, the Commission received written
comments from the Commission Staff and from another company named Big Sky Telecom, Inc.
from Emmett. Gerry Lambert is the proprietor of Big Sky Telecom. He indicated that his
company has been operating since 1997, is a registered Idaho corporation, and has a registered
web domain of "BigSkyTe1.com." Mr. Lambert said that his company operates as a CLEC and
as an Internet service provider in Idaho. Although he did not object to the competition
represented by IBST's entry into Idaho, he did object to the likelihood of customer confusion
between two companies with nearly identical names.
In its comments Staff recommended that the Application be denied for two reasons.
First, Staff asserted that IBST's Application failed to adequately demonstrate that the Company
can operate competently as a telecommunications carrier. In particular, the Application did not
identify "any relevant telecom experience of Company officials." Staff Comments at 2. Second
Staff was concerned that the Application does not demonstrate that IBST has the financial ability
ORDER NO. 29898
to adequately provide service. In particular, its financial information was not audited and it did
not show any previous telecommunications revenues. Id. at 3.
Staff also commented that the Secretary of State s office no longer operates as the
gatekeeper" of similar business names. Registering an "assumed business name" as IBST has
done does not authorize its business operations. Use of a similar business name may be viewed
as an unfair business practice if the similarity in names causes customer confusion. Staff
Comments at 2. Staff also stated that although the Company s president, Nick Cuneo , indicated
that the Company would submit additional information to address Staff's concerns, such
information was not forthcoming.
DEP ARTMENT OF FINANCE INVESTIGATION
Shortly after filing its comments, the Staff learned that IBST was under investigation
by the Idaho Department of Finance for allegedly selling unregistered securities in Idaho.
June 2004, the Department filed a civil suit against IBST, Big West Telecom, Nicholas F. Cuneo
James N. Bramble, and two other individuals. The Department alleged that the defendants sold
unregistered securities to Idaho customers and that they failed to register as securities salesmen
in Idaho prior to selling the unregistered securities. The Department also alleged that IBST made
false statements to prospective Idaho customers that it was properly registered in Idaho as a
telecommunications provider. The defendants purportedly represented to Idaho investors that the
Company would provide local, long-distance, cellular and Internet telephone service in eastern
Idaho. The Department asserted that Idaho investors sustained losses exceeding $100 000.
In March 2005 , the Department announced that it received a default judgment in
Fourth District Court against IBST and the other defendants.! The District Court found that the
defendants violated the Idaho Securities Act and enjoined them from further violations. The
judgment also ordered the defendants to provide restitution to Idaho investors in the amount of
$100 000 and ordered penalties against the defendants in an amount of $990 000.
ST AFF'S SUPPLEMENTAL COMMENTS
On August 12, 2005, Staff filed supplemental comments addressing the default
judgment awarded to the Idaho Department of Finance. The Staff stated that on July 18 , 2005 , it
sent a certified letter to IBST at its listed offices in Hallandale, Florida. The Staff advised the
1 In its Press Release regarding the default judgment, the Department of Finance noted that IBST was "in no way
associated with an Internet service company in Emmett, Idaho, that has a similar name.
ORDER NO. 29898
Company that it was aware that a default judgment had been entered against it in Fourth District
Court and that the Staff intended to again recommend to the Commission that IBST'
Application for a Certificate be denied. Supp. Comments at 2. The Staff's letter requested that if
the Company wished to address the default judgment and Staffs recommendation, it should
submit further comments in this action no later than August 8, 2005.
On August 29, 2005, Staff sent a follow-up certified letter to IBST requesting further
comments no later than September 13, 2005. Although the receipt shows that the second letter
was delivered, no further response from IBST was received. Consequently, Staff renewed its
recommendation that the Application of Idaho Big Sky Telecom be denied.
FINDINGS
Based upon the default judgment obtained by the Idaho Department of Finance and
the Company s lack of response to Staff s supplemental comments, we find it reasonable to deny
IBST's Application for a Certificate. The Court's judgment found that IBST and at least two
principal owners violated the Idaho Securities Act and sold unregistered securities to Idaho
residents. The Company also did not submit additional information in response to Staff s initial
comments or supplemental comments. Accordingly, IBST's Application is denied.
ORDER
IT IS HEREBY ORDERED that Idaho Big Sky Telecom s Application for a
Certificate to provide telecommunications services within Idaho is denied.
THIS IS A FINAL ORDER. Any person interested in this Order (or in issues finally
decided by this Order) or in interlocutory Orders previously issued in this Case No. GNR-03-
15 may petition for reconsideration within twenty-one (21) days of the service date of this Order
with regard to any matter decided in this Order or in interlocutory Orders previously issued in
this Case No. GNR-03-15. Within seven (7) days after any person has petitioned for
reconsideration, any other person may cross-petition for reconsideration. See Idaho Code ~ 61-
626.
ORDER NO. 29898
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this r2l
gt'
day of October 2005.
PAUL KJELLAND R, PRESIDENT
MARSHA H. SMITH, COMMISSIONER
ATTEST:
: D.
Commission Secretary
bls/O:GNR- T -03-15 dh2
ORDER NO. 29898