20031023Order No 29364.pdf

Office of the Secretary
Service Date
October 23, 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-O3-
IN THE MATTER OF THE APPLICATION
OF NPCR, INc. DBA NEXTEL PARTNERS
SEEKING DESIGNATION AS AN ELIGIBLE
TELECOMMUNICATIONS CARRIER.
CASE NO. GNR-O3-
ORDER NO. 29364
On September 30, 2003 , the Idaho Telephone Association (ITA) filed a Motion
pursuant to Rule 56 of the Commission s Rules of Procedure and Idaho Rule of Civil Procedure
37(a) requesting a Commission Order compelling discovery responses to its Requests No.4 and
14 from Clear Talk and Nextel Partners (Applicants). On October 7 and 14 2003, respectively,
Nextel Partners and Clear Talk filed memorandums in opposition to ITA's Motion. Neither the
Applicants nor IT A requested oral argument on the Motion. After reviewing the written record
in this case, the Commission denies ITA's Motion to Compel.
BACKGROUND
1. Production Requests and Motion to Compel
ITA stated that on August 8, 2003 , it served nearly identical discovery requests on the
Applicants. In late August 2003, the Applicants filed objections to a number of ITA's requests
including Requests No.4 and 14. In early September, the Applicants filed their initial set of
responses to the discovery requests not subject to objection.
IT A stated that the counsel(s) for the parties met in an attempt to informally resolve
their discovery disputes. The parties were able to resolve the majority of these disputes
including those concerning Request No. 14 that was directed to Clear Talk! Accordingly, ITA'
Motion is moot in regard to this request. However, ITA states that Clear Talk and Nextel have
refused to respond to its Request No.4. In Request No.4 ITA asked each Applicant:
1 ITA only sought to compel Clear Talk to respond to Request No. 14. ITA was able to obtain the fmancial
information it wanted from Nextel because the Company is publicly held and had made filings with the SEC.
ORDER NO. 29364
Please provide copies of the documents relating to (Nextel's/Clear Talk'
decision to file for ETC status in the state of Idaho , including but not limited
to memorandums, board of director minutes, management presentations
coITespondence and financial analysis and forecasts.
ITA's Production Requests at p. 2. Both Nexte1 and Clear Talk objected to Request No.4. In its
Objection filed August 22, 2003, Nextel stated:
Nextel Partners objects to this request as calling for information that is neither
admissible nor reasonably calculated to lead to the discovery of admissible
evidence. To the extent this request seeks information not previously
disclosed in public documents, such information is confidential, privileged
and a Trade Secret.
Nextel Partners ' Objections at pp. 3-4. In its August 25, 2003 objection Clear Talk stated:
Clear Talk objects to this request as improper because it seeks information
that is privileged, including attorney-client communications and attorney
work product. Clear Talk objects to this request on the grounds that it seeks
information, which is not relevant and/or is not reasonably calculated to lead
to the discovery of admissible evidence, and is intended to vex, annoy or
harass the responding party.
Clear Talk's Objections at p. 2.
In its Motion to Compel ITA argued that Request No.4 is well within the scope of
valid discovery. ITA respectfully requests that the Commission grant its Motion based on the
written record and order the Applicants to provide a full and accurate response to its Request No.
2. N extel Response
On October 7, 2003 , Nextel filed a response in opposition to ITA's Motion. Nextel
alleged that IT A offered the Commission no legal or factual argument or authority to support its
present Motion. Specifically, Nextel argued ITA has not demonstrated that this information is
relevant to this proceeding. Rather, Nextel claimed this information is not relevant to the criteria
that an applicant must meet in order to be designated as an ETC as defined by the federal
Telecommunications Act of 1996. Accordingly, Nextel contends that there is no legal basis for
reVIeWIng an applicant's internal, decision-making process related to its filing of an ETC
application.
Nextel also argued that the Texas State Office of Administrative Hearings recently
rejected a nearly identical discovery request directed to Nextel. The Company stated that an
ORDER NO. 29364
Administrative Law Judge held that the intervenor s failure to articulate how or why such
discovery would be relevant to the issues presented in an ETC proceeding was dispositive. See
Application of NPCR, Inc. (d/b/a Nextel Partners) for Eligible Telecommunications Carrier
Designation SOAR Docket No. 473-03-3673, PUC Docket No. 27709, Order No.5 at 12-
(Aug. 29, 2003). Based on the foregoing, Nextel requested that the Commission deny ITA'
Motion to Compel.
3. Clear Talk's Response
On October 14, 2003 , Clear Talk filed its Memorandum in Opposition to ITA'
Motion to Compel. Like Nextel, Clear Talk argued that because ITA has provided no legal basis
or argument in support of its Motion, it has failed to carry its burden to demonstrate that it should
be granted. Thus, Clear Talk requested that the Commission deny ITA's Motion to Compel.
COMMISSION FINDINGS AND DECISION
The Commission s Procedure Rules 221-233 and Idaho Rules of Civil Procedure 26
and 37 give the Commission authority over the scope and procedure of discovery in cases
coming before it. Rules 222 and 223 provide that all parties to a proceeding have a right of
discovery of all other parties. Rule 225 provides that production requests may be taken in
accordance with the Idaho Rules of Civil Procedure. This Rule also requires a party to object or
explain why a discovery request will not be answered. IDAP A 31.01.01.225.03.
The general rule governing the scope of discovery is found in the Idaho Rules of
Civil Procedure. Rule 26(b)(1) states:
Parties may obtain discovery regarding any matter, not privileged, which is
relevant to the subject matter involved in the pending action, whether it
relates to the claim or defense of the party seeking discovery or to the claim
or defense of any other party, including the existence, description, nature
custody, condition and location of any books, documents, or other tangible
things and the identity and location of persons having knowledge of any
discoverable matter. It is not ground for objection that the information sought
will be inadmissible at the trial if the information sought appears reasonably
calculated to lead to the discovery of admissible evidence.
LR.c.P. 26(b) (emphasis added).
Applications filed by Companies requesting eligible telecommunications carner
(ETC) status are governed by federal and state law. Under the federal Telecommunications Act
state commissions may designate common carriers as ETCs. 47 US.C. ~~ 214(e)(2) and 254(e).
ORDER NO. 29364
Because the Applicants are seeking ETC designation only to obtain federal subsidies rather than
state subsidies, the Commission s review of the Applications is guided by federal law. Section
214(e) ofthe Telecom Act requires a common carrier to: 1) offer the services that are supported
by the federal universal service support mechanisms under 47 U.C ~ 254(c) throughout its
ETC-designated service area; 2) use at least some of its own facilities in providing these
services; and 3) advertise the availability and price of these services. 47 US.C. 9214(e)(1)(A)
and (B). See also 47 C.R. 9 54.201(d). The list of designated services a telecommunications
carrier must be able to provide after designation as an ETC are: 1) voice grade access to the
public switched network; 2) local usage; 3) dual tone multi-frequency signaling or its functional
equivalent; 4) single-party service or its functional equivalent; 5) access to emergency services
where available; 6) access to operator services; 7) access to interexchange service; 8) access to
directory assistance; and 9) toll limitation. See 47 C.R. 9 54.101(a),z Lastly, for applicants
seeking ETC status in areas served by rural telephone companies, the state commission must
make a finding that designating more than one carrier in that area is in the public interest. 47
C. ~ 214(e)(2).
ITA's only argument in support of its Motion to Compel is that Request No.4 is well
within the scope of valid discovery. However, IT A does not provide any explanation why this is
so. More specifically, ITA does not explain how Request No.4 is "reasonably calculated" to
lead to material relevant to the subject matter of this proceeding as defined by federal statutes
and Federal Communications Commission (FCC) regulations discussed above. See LR.C.
26(b)(1). As a result the Commission does not find that ITA's Request No., asking for
information from the Applicants related to why they decided to file ETC Applications in Idaho
is reasonably calculated to lead to material relevant to this proceeding.
Commission denies ITA's Motion to Compel.
Accordingly, the
ORDER
IT IS HEREBY ORDERED that the Idaho Telephone Association s Motion to
Compel is denied.
2 In order to receive federal universal funds an ETC is obligated to make available Lifeline and Link Up services to
qualifying low-income customers. 47 C.R. ~~ 54.405 and 54.411.
ORDER NO. 29364
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this ;L3 ,.,J.
day of October 2003.
MARSHA H. SMITH, COMMISSIONER
ENNIS S. HANS N, COMMISSIONER
ATTEST:
~(.)
D. Jewell
Commission Secretary
O:GNRTO308- GNRTO316jh7
ORDER NO. 29364