HomeMy WebLinkAbout20030626Response.pdfOR\G\NAL nECEiVED
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McDEVITT & MILLER, LLP
Dean J. Miller (ISB No. 1968)
420 West Bannock Street
O. Box 2564-83701
Boise, Idaho 83702
Phone (208) 343-7500
Facsimile (208) 336-6912
j oe~mcdevitt -mi lIer .com
2003 JUN 26 PM 2: 56
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UTiLiT Ii:S COi'H1iSSIOH
BRIGGS AND MORGAN, P.
Philip R. Schenkenberg (MN #260551)
2200 First National Bank Building
332 Minnesota Street
Saint Paul, Minnesota 55101
Phone (651) 808-6600
Facsimile (651) 808-6450
pschenkenberg~briggs. com
Attorneys For NPCR, Inc. d/b/a Nextel Partners
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
In the Matter of the Petition of IA T
Communications, Inc. d/b/a NTCH-Idaho, Inc., or )
Clear Talk for Designation as an Eligible
Telecommunications Carrier
-- )
Case No. GNR-O3-
---,-------- ,.---
In the Matter of the Application of NPCR, INC.d/b/a NEXTEL PARTNERS Seeking
Designation as an Eligible Telecommunications
Carrier that may receive Federal Universal Service
Support
Case No. GNR-O3-
NPCR, INc. D/B/A NEXTEL PARTNERS' MEMORANDUM IN RESPONSE TO THE
PROTESTS, COMMENTS AND MOTION TO STAY OF CITIZENS TELECOM. CO.
OF IDAHO , POTLATCH TELEPHONE CO., CENTURYTEL OF IDAHO AND
CENTURYTEL OF THE GEM STATE
NPCR, Inc. d/b/a Nextel Partners ("Nextel Partners ) submits this memorandum in
response to the June 16, 2003 Protests, Comments and Motion to Stay of Citizens
Telecommunications Company of Idaho ("Citizens ), Potlatch Telephone Company, CenturyTel
of Idaho and CenturyTel of the Gem State (Potlatch Telephone, CenturyTel of Idaho and
NPCR, INC, D/B/A NEXTEL PARTNERS' MEMORANDUM IN RESPONSE TO THE PROTESTS, COMMENTS AND MOTION
TO STAY OF CITIZENS TELECOM, CO. OF IDAHO, POTLATCH TELEPHONE CO., CENTURYTEL OF IDAHO AND
CENTURYTEL OF THE GEM STATE-
CenturyTel of the Gem state are collectively referred to as "Protestants ) purportedly filed
pursuant to IDAPA 31.01.01 , Subd. B , Part 1 , Rules 203 (Protests and Comments) and 324 (Stay
of Orders).
Protestants Lack Standin!! To Protest Or File Comments Under Rule 203: Rule 324
Is Inapplicable.
As a threshold matter, Protestants' June 16 protest and comments must be summarily
rejected by the Commission because Protestants lack standing under Rule 203, which reads as
follows:
Any person affected by the proposal of the moving party may file a written
protest, support or comment before the deadline of the notice of modified
procedure. Protests, supports and comments must contain a statement of the
reasons for the protest, support or comment, but need not ask for a hearing.
Persons desiring a hearing must specifically request a hearing in their written
protests or comments. A copy of the person s protest, support or comment must
be served on the representative of the moving party.
Id. (emphasis added).
Protestants freely admit they will not be affected by the granting of the Applications for
Designation as Federal Eligible Telecommunications Carriers of either Nextel Partners or IA T
Communications, Inc. d/b/a NTCH-Idaho, Inc. or Clear Talk ("Clear Talk") because "Protestants
service territories have not been designated by (either carrier J as part of their current
applications.Citizens/Protestants Brief at 2. Accordingly, because Rule 203 plainly requires
that a party actually be affected by the proposal of the moving party before it may formally
protest or comment on such proposal, Protestants have failed to establish sufficient standing to
participate in these proceedings. Indeed, Protestants recognized as much in conceding that they
do not have standing to formally intervene. See IDAPA 31.01.01 , Subd. B, Part 1 , Rule 71 (only
parties with a direct and substantial interest in the proceeding may intervene).
NPCR, INC, D/B/A NEXTEL PARTNERS' MEMORANDUM IN RESPONSE TO THE PROTESTS, COMMENTS AND MOTION
TO STAY OF CITIZENS TELECOM, CO. OF IDAHO, POTLATCH TELEPHONE CO" CENTURYTEL OF IDAHO AND
CENTURYTEL OF THE GEM STATE-
Citizens' and Protestants ' reliance on Rule 324 is misplaced. That Rule confers authority
stay a final or interlocutory order pending reconsideration or review. See IDAPA 31.10.
Rules 322 , 333. Rule 324 is not a source of authority for a stay of proceedings.
Movants ' Speculative Concerns Do Not Warrant Stavin!! These Proceedin!!s.
Likewise, Citizens' and Protestants ' speculative arguments in support of their motion to
stay the above proceedings until the FCC rules on Joint Board recommendations in Docket 96-
should be summarily rejected. In sum, Citizens and Protestants complain that:
The FCC's ruling might result in applicants for competitive ETC designation
being judged by two different sets of criteria depending upon when their applications are filed
which could then prejudice one or more competitive ETC or ILEC in some unspecified manner;
The FCC's ruling may change the amount of support that is available, which could
then somehow affect an applicant's decision to apply or withdraw; and
The FCC's ruling may make these proceedings somehow unnecessary.
See Citizens/Protestants Brief at 2.
For the reasons discussed below, the Commission should reject Citizens' and Protestants
anti-competitive arguments and proceed to consider the merits of the pending Applications.
Citizens' and Protestants' Arguments are Purely Speculative
Citizens and Protestants rely on unsubstantiated concerns that a subsequent FCC ruling
may (1) alter the criteria applied to an applicant for ETC designation, (2) alter the amount of
support available, or (3) even make these proceedings unnecessary. These claims should be
summarily rejected as purely speculative.
NPCR, INC, D/B/A NEXTEL PARTNERS' MEMORANDUM IN RESPONSE TO THE PROTESTS , COMMENTS AND MOTION
TO STAY OF CITIZENS TELECOM. CO, OF IDAHO, POTLATCH TELEPHONE CO., CENTURYTEL OF IDAHO AND
CENTURYTEL OF THE GEM STATE-
The Telecommunications Act of 1996 (the "Act") fully contemplates that the FCC and
Federal-State Joint Board ("Joint-Board") will continue to review and address the universal
service support mechanisms over time:
Universal service is an evolving level of telecommunications services that the
Commission shall establish periodically under this section, taking into account
advances in telecommunications and information technologies and services. . .
The Joint Board may, from time to time, recommend to the Commission
modifications in the definition of the services that are supported by Federal
universal service support mechanisms.
See 47 US.C. 254(c)(1) - (2).
Indeed, in response to various recommendations of the Joint-Board, the FCC has, to date
issued twenty-five Reports and Orders addressing universal service issues, and has never
suggested that a state commission stay its consideration of ETC applications pending future FCC
pronouncements. For example, on May 21 , 2003 , the FCC issued its Twenty-Fifth Order on
Reconsideration, Report and Order, and Further Notice of Proposed Rulemaking to address
certain Lifeline and Link-Up issues. Instead of recommending that states stop designating ETCs
the FCC stated:
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 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 Report and
Order FCC 03-115 ~ 26 (reI. May 21 , 2003) (emphasis added) (footnotes omitted). This
NPCR, INC. D/B/A NEXTEL PARTNERS' MEMORANDUM IN RESPONSE TO THE PROTESTS, COMMENTS AND MOTION
TO STAY OF CITIZENS TELECOM. CO. OF IDAHO, POTLATCH TELEPHONE CO., CENTURYTEL OF IDAHO AND
CENTURYTEL OF THE GEM STATE-4
Commission should follow the urging of the FCC and resolve the issues raised on the pending
Applications.
Further, Citizens and Protestants ignore the fact that Nextel Partners has committed itself
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. See Nextel Partners' Application Seeking Designation
as an Eligible Telecommunications Carrier, ~ 19.
Consequently, the Commission should not delay its consideration of the pending
Applications in these proceedings on the basis that the FCC may - in some undefined way, and
at some indefinite time - impose new or different criteria or obligations concerning the
designation of federal ETCs. Indeed, to do so would prevent any competitive provider from
becoming eligible to receive support from the federal Universal Service Fund ("USF") and
therefore, would substantially frustrate the Act's twin goals of promoting competition and
preserving and advancing universal service. See PubLaw 104-104, 11 0 Stat 56 (1996); see also
Joint Explanatory Statement of the Committee of Conference, H.R. Conf. Rep. No. 458 , 1O4th
Cong., 2d Sess. at 113 (the purpose of the Act is "to provide for a pro-competitive, de-regulatory
national policy framework designed to accelerate rapidly the private sector deployment of
advanced telecommunications and information technologies and services to all Americans by
opening all telecommunications markets to competition. . . .
The Commission Should Ignore Citizens' and Protestants ' Anti-Competitive
Arguments
Citizens' and Protestants ' feigned concern for the welfare of its competitors is plainly
disingenuous and should be ignored. Having already been designated as ETCs, Citizens and
NPCR, INC, D/B/A NEXTEL PARTNERS' MEMORANDUM IN RESPONSE TO THE PROTESTS, COMMENTS AND MOTION
TO STAY OF CITIZENS TELECOM. CO. OF IDAHO, POTLATCH TELEPHONE CO" CENTURYTEL OF IDAHO AND
CENTURYTEL OF THE GEM STATE-
Protestants each receIve substantial USF support. Yet they now complain that otherwise
eligible competitive carriers should be deprived of competitively-neutral support pending an
FCC ruling that is not expected for at least another six to twelve months . Indeed, while Citizens
and Protestants express concern that future ETC applicants may be subjected to "two entirely
different sets of criteria (which J could result in an unfair advantage as to one or more CETCs
and/or disadvantage as to one or more ILECs " they fail to acknowledge that they, themselves
were designated as ETCs under rules and/or criteria that may be different than those applicable
to current applicants. Nor do they suggest that their OWfl ETC designations be suspended or
revoked pending the FCC's future ruling, even though it could just as easily affect their own
provision of universal service or receipt ofUSF support.
The Commission should not apply a double-standard.Rather, the Commission is
compelled by the Act's pro-competitive objectives to consider the pending Applications pursuant
to existing Commission and FCC rules and reject the self-serving arguments of carriers seeking
to stifle competition.
The Commission Must Apply the Substantive Rules in Force at the Time
These Proceedings Were Commenced
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 Comm. v. City of Boise 137 Idaho 377; 48 P.3d 1266 (2002)
1 According to the Universal Service Administrative Company s ("USAC") Projected High Cost Support
figures for the First Quarter of 2003, Citizens will receive over $1.8 million in USF funding per quarter.
CenturyTel-Gem State will receive $324 651 per quarter; CenturyTel of Idaho $631 094; and Potlatch
$109 847. USAC's quarterly FCC reports can be viewed at http://www.universalservice.org/overview/filings.
2 Citizens and Protestants incorrectly state that a FCC decision is expected toward the end of 2003 or the
beginning of 2004. In fact, the Joint Board Recommended Decision is anticipated in that time frame. It is
unknown how much additional time will be required for review by the FCc.
NPCR, INC. D/B/A NEXTEL PARTNERS' MEMORANDUM IN RESPONSE TO THE PROTESTS, COMMENTS AND MOTION
TO STAY OF CITIZENS TELECOM. CO. OF IDAHO, POTLATCH TELEPHONE CO., CENTURYTEL OF IDAHO AND
CENTURYTEL OF THE GEM STATE-
In Idaho 'an applicant's rights are determined by the ordinance in existence at the time of filing
an application for the permit"') (citing Payette River Property Owners Ass v. Board of
Comm rs of Valley County, 132 Idaho 551 , 555, 976 P.2d 477, 481 (1999) and South Fork
Coalition v. Board of Comm 117 Idaho 857, 860-, 792 P.2d 882, 885-86 (1990)). In
contrast, subsequent changes in procedural rules are applicable to existing proceedings. See
g., University of Utah Hospital v. Pence 104 Idaho 172 657 P.2d 459 (1982).
Thus, to the extent a subsequent FCC ruling may cause the Commission to commence its
own rulemaking procedure to promulgate or modify the Commission s 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 in these proceedings.
Accordingly, the Commission must proceed to consider the applicants' petitions for designation
as federal ETCs under the substantive rules in effect on the date each was filed with the
Commission.
CONCLUSION
The Commission should not delay its consideration ofNextel Partners' and Clear Talk'
pending Applications based on purely speculative predictions concerning what, if anything, the
FCC might do in the future. Under well established Idaho law, the Commission must apply the
law and rules in effect at the time these proceedings were commenced. The Commission should
therefore deny the pending motion to stay these proceedings.
NPCR, INC. D/B/A NEXTEL PARTNERS' MEMORANDUM IN RESPONSE TO THE PROTESTS, COMMENTS AND MOTION
TO STAY OF CITIZENS TELECOM. CO, OF IDAHO, POTLATCH TELEPHONE CO., CENTURYTEL OF IDAHO AND
CENTURYTEL OF THE GEM STATE-
Dated: June 26, 2003 Respectfully submitted
NPC
r\c.
d/b/a NEXTEL PARTNERS
BY:
McDEVITT & MILLER, LLP
Dean J. Miller
420 West Bannock Street
O. Box 2564-83701
Boise, Idaho 83702
Phone (208) 343-7500
Facsimile (208) 336-6912
BRIGGS AND MORGAN, P.
Philip R. Schenkenberg (MN #260551)
Matthew Slaven (MN #288226)
2200 First National Bank Building
332 Minnesota Street
Saint Paul, Minnesota 55101
Phone (651) 808-6600
Facsimile (651) 808-6450
COUNSEL FOR APPLICANT
NPCR, INc. d/b/a NEXTEL PARTNERS
NPCR, INC, D/B/A NEXTEL PARTNERS' MEMORANDUM IN RESPONSE TO THE PROTESTS, COMMENTS AND MOTION
TO STAY OF CITIZENS TELECOM. CO. OF IDAHO, POTLATCH TELEPHONE CO" CENTURYTEL OF IDAHO AND
CENTURYTEL OF THE GEM STATE-
CERTIFICATE OF SERVICE
I hereby certify that on the 7?llay of June, 2003 1 caused to be served true and correct copies of NPCA, Inc-
d/b/a Nextel Partners' Memorandum In Response To The Protests, Comments And Motion To Stay Of Citizens Telecom- Co-
Of Idaho, Potlatch Telephone Co., Century tel Of Idaho And Century tel Of The Gem State by the methodes) indicated
below, upon:
Sean P. Farrell, General Counsel
lA T COMMUNICATIONS, INC.
703 Pier Avenue, Suite B; PMB 813
Hermosa Beach, California 90254
sfarrell~cleartalk.net
Attorney for IAT Communications, Inc.
Molly O'Leary
RICHARDSON &: O'LEARY
99 East State Street, Suite 200
O. Box 1849
Eagle, Idaho 83616
moll y~ri chardsonando 1 earv. com
Attorney for IAT Communications, Inc.
Conley E. Ward, Jr.
GIVENS PURSLEY, LLP
227 North 6th Street, Suite 200
O. Box 2720
Boise, Idaho 83701-2720
cew~givenspursley.com
Attorney for Idaho Telephone Association
Clay Sturgis, Senior Manager
Moss ADAMS LLP
601 Riverside, Suite 1800
Spokane, Washington 99201-0063
clays~mossadams.com
Attorney for Idaho Telephone Association
Morgan W. Richards
MOFFAT THOMAS BARRETT ROCK & FIELDS
101 So. Capitol Blvd., 10th Floor
O. Box 829
Boise, Idaho 83701
mwr~moffatt.com
Attorney for Citizens Telecommunications of Idaho
Lance A. Tade, Manager
State Government Affairs
CITIZENS TELECOMMUNICATIONS OF IDAHO
4 Triad Center, Suite 200
Salt Lake City, Utah 84180
ltade~czn.com
Attorney for Citizens Telecommunications of Idaho
~4~
Hand Delivered Mary S. Hobson Hand Delivered
Federal Express STOEL RIVES LLP Federal Express
S. Mail 101 So. Capitol Blvd., Suite 1900 S, Mail
Telecopy Boise Idaho 83702 Telecopy
mshobson~stoel.com
Attorneys for Qwest Corporation
Hand Delivered Robert M. Nielsen Hand Delivered
Federal Express ATTORNEY AT LAW Federal Express
S. Mail O. Box 706 S, Mail
Telecopy Rupert, Idaho 83350 T elecopy
Attorney for Project Mutual Telephone
Cooperative Association, Inc.
Hand Delivered John Hammond, Deputy AG Hand Delivered
Federal Express ID PUBLIC UTILITIES COMMISSION Federal Express
S. Mail 472 West Wasington Street S, Mail
Telecopy O. Box 83720 Telecopy
Boise, Idaho 83720-0074
ihammon~puc.state.id.
Commission Staff
Hand Delivered
Federal Express
S, Mail
Telecopy
Hand Delivered
Federal Express
S. Mail
Telecopy
Hand Delivered
Federal Express
S, Mail
Telecopy