20030507Decision Memo.pdf

DECISION MEMORANDUM
TO:COMMISSIONER KJELLANDER
CO MMISSI 0 NER SMITH
CO MMISSI 0 NER HANSEN
COMMISSION SECRETARY
COMMISSION STAFF
LEGAL
FROM:JOHN HAMMOND
DATE:MAY 7, 2003
SUBJECT:IN THE MATTER OF IAT COMMUNICATIONS, INc. DBA NTCH-
IDAHO, INC. OR CLEAR TALK FOR DESIGNATION AS AN ELIGIBLE
TELECOMMUNICATIONS CARRIER, CASE NO. GNR-03-8 AND
IN THE MATTER OF THE APPLICATION OF NPCR, INC. DBA
NEXTEL PARTNERS SEEKING DESIGNATION AS AN ELIGIBLE
TELECOMMUNICATIONS CARRIER, CASE NO. GNR-03-16.
On February 3 and April 28 , 2003 , the Commission received a Petition and an
Application from rAT Communications and Nextel Partners respectively each requesting that the
Commission designate them as a eligible telecommunications carrier ("ETC") for service areas
in Idaho that are currently being served by other ETCs. See Idaho Code 61-610A and Order
No. 27715 , Case No. GNR-98-7. See also 47 D.C. 9214(e)(2). On May 5, 2003, Clear Talk
filed an Amendment to its Petition. The Idaho Telephone Association has filed a timely Petition
to Intervene for both IA T Communications filing and Nextel Partners' filing.
Because the above filings raise substantially similar issues and will largely involve
the same interested persons and parties Staff submits this Decision Memorandum requesting that
the Commission process these cases in the same proceeding.
BACKGROUND
1. Clear Talk
rAT Communications, Inc. (a Delaware Corporation), doing business through its
wholly-owned subsidiary NTCH-Idaho, Inc., (an Idaho corporation), hereinafter referred to as
Clear Talk " provides wireless telecommunications service in southeast Idaho in accordance
with the licenses it has been granted by the Federal Communications Commission ("FCC"
Clear Talk's Petition states that in these areas it currently offers each of the services required by
DECISION MEMORANDUM
Order No. 27715 in order to be granted ETC status by the Commission. In addition, Clear Talk
states that it will advertise and promote the availability and price of its universal service offering
using media of general distribution, pursuant to Idaho Code 9 62-610D(3)(b). The Company
thus requests designation of ETC status in the service areas in southeastern Idaho currently
served by one or more of the following ETCs: Albion Telephone Company, Citizens
Telecommunications Company of Idaho , Filer Mutual Telephone Company, Fremont Telecom
Inc., Project Mutual Telephone Cooperative Association, Inc. and Qwest Corporation. Clear
Talk alleges that designating it as an ETC in these service areas will serve the public interest by
promoting competition and benefiting Idaho consumers, especially those in rural and high-cost
areas, by: 1) increasing customer choice; 2) increasing innovative services; and 3) increasing the
availability of new technologies at competitive prices.
In its Petition Clear Talk stated that it provides service on the Fort Hall Indian
Reservation but it was not seeking Commission designation as an ETC in this area because this
issue was being pursued by separate petition before the FCC. However, Clear Talk'
Amendment stated that it was retracting its statement in its Petition about tribal lands and was
now seeking Commission designation as an ETC throughout its service areas in Idaho including
tribal lands. The Company s Amendment also states that its Petition for ETC status is not for
purposes of receiving support from the Idaho Universal Service Fund pursuant to Idaho Code
62-610. Clear Talk also states in its Amendment that if the Commission chooses to process
Nextel Partners' April 28 , 2003 Application concurrently then the Company requests that its
ETC designation be made effective before Nextel's for a time period that corresponds to the time
gap between their respective filings. In the alternative, Clear Talk requests that the Commission
issue an interim Order for ETC designation for any service areas for which the Company
Petition is not contested.
On April 21 , 2003 , the Commission decided to process Clear Talk's Petition by
Modified Procedure under the Commission s Rules of Procedure with a 28 day deadline for
interested persons and parties to file written comments. However, Notice of Application and
Notice of Modified Procedure has not been issued at this time due to the filing ofNextel Partners
Application that Staff believes should be processed in a joint proceeding with Clear Talk'
Petition.
DECISION MEMORANDUM
2. Nextel Partners
NPCR, Inc. dba Nextel Partners, a Delaware corporation with its principle place of
business in Eden Prairie, Minnesota, contends that it is licensed to provide, and does provide
wireless telecommunication services in certain designated areas of the State of Idaho. Nextel
Partners states in its Application that it does not seek designation as an ETC for purposes of
receiving support from the Idaho Universal Service Fund pursuant to Idaho Code 62-610, et
seq.
Nextel Partners states that with exception of the area served by Citizens
Telecommunications Company of Idaho each of the designated areas it seeks to serve is a study
area of a rural telephone company as defined in 47 U.C. 9 153(37) of the Act. With regards to
the area served by Citizens, the designated areas are identified as specific Citizens exchanges.
The rural telephone company study areas for which Nextel Partners seeks ETC designation for in
this Application are Albion Telephone Company, Filer Mutual Telephone Company, Farmers
Mutual Telephone Company, Mud Lake Telephone Cooperative and Project Mutual Telephone.
Nextel's Application contends that granting its Application is in the public interest
for the area served by rural telephone companies because: 1) it is a common carrier providing
service with its own facilities; 2) customers will benefit from the provision of competitive
universal services; 3) Nextel's offerings have a larger local calling area than landline offerings;
4) Nextel's product supports the provisions of data services; 5) the use of federal universal
service funds by Nextel will allow it to extend wireless networks into the rural areas ofldaho; 6)
designation will provide incentives for incumbent LECs in the designated areas to improve their
networks in order to remain competitive, resulting in improved services to consumers; 7) Nextel
Partners will provide all of the supported services required by the Commission, will participate
in the LifeLine and Link-Up programs as required by the FCC's Rules, and will otherwise
comply with all FCC Rules governing universal service programs; 8) designation will promote
the extensive role Nextel Partners plays in the provision of services to Idaho public schools
libraries and local, state and federal government agencies; and 9) designation will not threaten
the provision of universal services by rural telephone companies.
Nextel Partners also alleges that because Citizens ' service or study area includes
groups of non-contiguous exchanges, it does not serve the entire study area of Citizens.
Accordingly, the Company requests that the Commission in conjunction with the FCC approve a
DECISION MEMORANDUM
redefinition of Citizens ' ETC service area to allow a competitive ETC to enter the market. The
Company contends that this process is set forth in 47 C.R. 9 54.207.
In conclusion, Nextel Partners respectfully requests that the Commission enter its
Order establishing an intervention deadline, promptly convene a prehearing conference, and
thereafter such procedures as the Commission may prescribe enter its Order designating Nextel
Partners as an ETC in the designated area identified by this Application effective July 2003.
STAFF RECOMMENDATION
As discussed in Staffs previous Decision Memorandum on Clear Talk's Petition, the
designation of multiple ETCs in any area (non-rural or rural), including wireless carriers, and the
associated impacts this designation might have on universal service support has received
significant national attention and remains under consideration at the FCc.Staff understands
that prior to designation as an ETC that this Commission must consider several factors prior to
granting this status to the requesting telecommunications company. At this time Staff believes
that these issues raised by Clear Talk and Nextel Partners' filings can be addressed by using
Modified Procedure (processing by written comments) under the Commission s Rules of
Procedure. However, depending on how proceedings surrounding these filings develop, Staff
reserves its right to request further procedure to handle these matters should the need arise.
Because the issues raised by the Clear Talk and Nextel Partners' filings raIse
substantially similar issues, is of interest to several parties and is one of first impression before
the Commission in Idaho, Staff recommends that the Commission process this case in one joint
proceeding. Staff believes that proceeding in this manner is the most efficient option at this time.
Should the Commission choose to process these matters jointly, Staff recommends that the
Commission issue a Joint Notice of Application and Modified Procedure with a 28-day period
for interested persons and parties to submit written comments.
Finally, after reviewing the Idaho Telephone Association s Petitions to Intervene
Staff recommends that the Commission grant them.
I Public Notice - Federal-State Joint Board on Universal Service Seeks Comment on Certain of the Commission
Rules Relating to High Cost Universal Service Support and the ErC Designation Process. CC Docket No. 96-45.
Re al. February 7 2003.
DECISION MEMORANDUM
COMMISSION DECISION
Does the Commission wish to process these filings made by Nextel Partners and IAT
Communications, Inc. dba Clear Talk in a joint proceeding?
If so, does the Commission wish to proceed by Modified Procedure and issue a Joint
Notice of Applications and Notice of Modified Procedure that would establish a 28-day period to
submit written comments on these filings?
Does the Commission wish to grant the Idaho Telephone Association s Petitions to
Intervene in these proceedings?
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J 0 l1ri Haimnond
DECISION MEMORANDUM