20110630final_order_no_32277.pdf

Office of the Secretary
Service Date
June 30.2011
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF AN INVESTIGATION )
OF AN APPROPRIATE CERTIFICATION )CASE NO.GNR-T-l1-O1
PROCESS FOR TELECOMMUNICATIONS )
COMPANIES THAT DO NOT PROVIDE )ORDER NO.32277
BASIC LOCAL EXCHANGE SERVICE )
On August 27,2010,the Commission issued Order No.32059 in Case No.TIM-T
08-01.The Order denied a request by Time Warner Cable Information Services (Idaho),LLC
for a Certificate of Public Convenience and Necessity (CPCN)that would authorize it to provide
telecommunications service in Idaho because the Company was not planning to offer “basic local
exchange service”as defined in Title 61,Idaho Code.The Commission stated in the Order that
it no longer issues CPCNs to telephone corporations under Idaho Code §61-526,and instead it
“registers”new competitive local exchange carriers (CLECs)by issuing a “Certificate”under
Commission Rule 114,IDAPA 3 1.01.01.114.Order No.32059,p.7.The Commission stated it
used the certification process to register and review applicants to provide telecommunications
services pursuant to Rule 114.Id.
Evidence in Case No.TIM-T-08-01 indicated the Commission may have issued
CPCNs under Title 62,Idaho Code,to other wholesale telecommunications providers.The
Commission stated in its Order that,inasmuch as it may have previously issued CPCNs to
companies who do not offer basic local exchange services,“the Commission is committed to
appropriately addressing the matter through an investigatory process to verify that recipients of
CPCNs are actually providing basic local exchange service to customers in Idaho.”Order No.
32059,p.11.The Commission further stated that it “is taking appropriate steps to verify that
Title 62 Certificates are issued to carriers providing basic local exchange service,”and that the
Commission “intends to investigate all holders of Title 62 CPCNs to ensure they are providing
basic local service.”Order No.32059,p.12.
In response to the Commission’s directive in Order No.32059,the Commission Staff
requested information of all Idaho CLECs regarding the current count of access lines provided
by each company to residential customers in Idaho and to small business customers.Based on
the information provided,and referencing the Commission’s instructions in Order No.32059,
ORDER NO.32277 1
Staff notified CLECs that currently hold a CPCN but do not provide basic local exchange service
that the Commission might consider rescinding the company’s CPCN.Responses to Staffs
request were sent to the Commission Secretary.
In response to Staff’s correspondence,some companies objected to possible
relinquishment of their CPCN.Several companies provided specific information regarding their
need for a CPCN from the Commission.As part of its response,one company suggested that
“rather than revoking a company’s certificate,the Commission consider offering a separate
certification for those carriers that do not provide ‘retail basic local exchange’under state law
but provide or offer to provide other local exchange and exchange access service in Idaho under
the federal act.”The company explained that
A gap exists today between the application of Idaho law and the implementing
rules relating to rights of CLECs under Sections 251 and 252 of the
Telecommunications Act of 1996.As the Commission acknowledges,the
definition of a ‘local exchange carrier’entitled to Section 251 and 252 rights
is broader than Idaho state law’s definition of the providers of basic local
exchange service.’Under the Act,even those providers seeking to provide
only wholesale telecommunications services are entitled to interconnection
and other rights of local exchange carriers.In Idaho,however,only ‘basic
local exchange carriers’obtain a ‘Certificate’from the Commission.
Processes relating to the federal Act such as those noted above
(interconnection,numbers,company codes)require some sort of
‘certification’from the Idaho Commission authorizing the CLECs to provide
local telecommunications services here.Without it,a CLEC is prevented
from entering the Idaho local exchange market.
The company recommended the Commission provide a sort of “written certification”or “order in
lieu of certificate,”rather than a CPCN,to solve the problem of CLECs that need Commission
approval but do not provide basic local exchange service.
In light of the responses received from Staff’s inquiry into access line use by CLECs,
the Commission opened a docket to investigate whether some sort of certification process is
appropriate for Title 62 telecommunications providers that do not provide basic local exchange
service.The Commission issued a Notice of Investigation and solicited written comments
addressing the need or purpose of a certification for telecommunications companies that provide
services other than basic local exchange service.The Commission asked that written comments
address the following questions:
ORDER NO.32277 2
I.Is a certification by the Commission necessary for companies providing
telecommunications services but not basic local exchange service?
2.If some sort of Commission certification is needed,what form or
designation might it take?
3.What legal authority does the Commission have to issue certification that
is not a Certificate of Public Convenience and Necessity?
4.What can the Commission do to ensure numbers are used efficiently by
CLECs and other telecommunications providers?
Order No.32194.
WRITTEN COMMENTS
Written comments were filed by Qwest Communications Company,LLC (QCC);
36Onetworks (USA),Inc.(36Onetworks);AT&T Communications of the Mountain States,Inc.
(AT&T);Time Warner Cable Information Services (Idaho),LLC dba Time Warner Cable (Time
Warner);and the Commission Staff.QCC and AT&T also filed reply comments.
All of the commenting parties recommended the Commission adopt a certification or
registration process for wholesale telecommunications providers to be recognized as eligible to
provide services in Idaho.AT&T suggested the Commission adopt a registration process for
providers of service that do not meet the definition of basic local service and issue a registration
number to a company that files basic information with the Commission,such as company name,
business address,description of telecommunications services offered and the area to be served.
AT&T stated it does not believe a CPCN or a registration number is required to obtain telephone
numbers or an interconnection agreement,but that a registration process would nonetheless
facilitate those processes.In addition,a registration number issued by the Commission would
provide evidence to NeuStar,which oversees the allocation of numbering resources,that the
company is authorized to provide service in an area.AT&T Comments,p.3.In its reply
comments,AT&T noted that all the commenters recommend that the Commission adopt a
process for a company that does not offer basic local exchange service to obtain Commission
recognition that the company is authorized to enter the local markets in Idaho.This recognition
by the Commission would enable the company to more easily obtain access to numbering
resources and interconnection agreements.AT&T Reply Comments,p.2.AT&T was the only
commenter to suggest that the Commission issue a registration number to demonstrate that the
ORDER NO.32277 3
company is authorized to offer service in the state.In its reply comments,AT&T stated that if
the Commission determines that the registration process it suggested is not sufficient,AT&T
does not oppose the use of an Order in lieu of Certificate as suggested by other parties.If that
process is used,AT&T suggested that a company requesting an Order in lieu of Certificate
should not be required to provide as detailed information as those companies that require a
CPCN,and the Commission should specify in advance the precise information that is required
for an Order in lieu of Certificate so that an Order can be granted expeditiously.AT&T Reply
Comments,pp.2-3.
36Onetworks in its comments addresses each of the questions identified by the
Commission.36Onetworks contends that Commission certification is required for a company to
obtain interconnection agreements with Qwest Corporation,Verizon,and CenturyTel.In
addition,36Onetworks asserts “an Idaho specific CLEC certification is also required for a CLEC
to obtain company codes that allow it to exchange information with other telecommunications
providers for the proper routing and rating of telecommunications traffic transmitted between it
and the rest of the industry.”36Onetworks Comments,p.2.36Onetworks further asserts that a
CLEC is not able to obtain numbering resources in Idaho if it does not obtain written
authorization from the Commission to provide local services in the state.36Onetworks contends
evidence of state authorization is required for a company to exercise its rights under Section 251
of the federal Act to provide service in a state.As to a form of certification,36Onetworks points
to the solution determined by the Iowa Commission “to close the gap between state and federal
law and to allow competitive local telecommunications service providers seeking to provide
services in Iowa to exercise their 251 and 252 rights.”36Onetworks Comments,p.3.The Order
in lieu of Certificate process adopted by the Iowa Commission is “used by those local exchange
carriers that do not meet the state CPCN requirement but enables the providers to exercise rights,
privileges and obligations under the federal Act.”36Onetworks Comments,p.3.
Regarding the Commission’s legal authority to issue certification that is not a CPCN,
36Onetworks discussed Idaho Code §62-615 that grants to the Commission full power and
authority to implement the federal Telecommunications Act of 1996,and to adopt rules and
procedures necessary to carry out the duties authorized or required by the Act.36Onetworks
Comments,p.4.36Onetworks contends the Commission may use this authority to adopt a
process to issue a written Certificate to a wholesale provider of telecommunications services
ORDER NO.32277 4
wishing to operate in the state.Regarding the efficient use and preservation of telephone
numbers,36Onetworks contends that no change to existing practice is required because
wholesale telecommunications providers have the same obligations as retail telecommunications
providers under federal regulations when obtaining numbers from the North American
Numbering Administrator (NANPA).
QCC also responded to the four questions identified by the Commission.QCC
distinguished itself from the other commenters by noting that it has a CPCN issued by the
Commission,although it does not currently provide basic local exchange service.QCC asserts
that providing basic local exchange service is one of its business objectives and QCC holds itself
out as willing to provide that service.QCC Comments,p.3.QCC also notes that its Networx
Universal contract with the federal government requires that it file all tariffs and make other
regulatory filings in any state in which the federal agency might operate.QCC thus believes the
contract language implicitly requires it to hold a CPCN for Idaho.QCC asserts that if the
Commission were to withdraw its CPCN it could be deemed out of compliance with its Networx
contract requirements.
If the Commission were to adopt some sort of certification process for wholesale
providers,QCC asserts that that certification must allow the company to file and maintain tariffs
and price lists that describe the services it offers,and must allow for a simple and self-executing
conversion to a full CPCN once a customer order for local service is received.QCC Comments,
p.6.As did the other commenters,QCC points to the Commission’s authority in Idaho Code §
62-615 to fully implement the federal Telecommunications Act as authority to approve an
alternative certification process.
Regarding efficient use of telephone numbers,QCC points to the existing
requirements,including mandatory number pooling for all rate centers and area code relief in the
form of an overlay,as key factors in number conservation and effective use of NANPA
resources.QCC Comments,p.7.QCC notes that the historical system of certifying CLECs is
an effective means of securing compliance with these measures and that if the Commission
adopts an alternative form of certification for entities not providing basic local exchange service,
the Commission should include such compliance as part of the qualifications for that
certification.In its reply comments.QCC stated its support of Staff’s recommendation that the
Commission not revoke CPCNs already provided to companies that may not currently be
ORDER NO.32277 5
providing basic local exchange service,QCC also clarified that Qwest Corporation does not
require CLECs to obtain a Commission-issued CPCN prior to negotiating an interconnection
agreement.Although Qwest Corporation’s website does recommend a CLEC obtain certification
as a telecommunications provider enabling it to do business,QCC maintains that the language
does not create a condition precedent to negotiations of an interconnection agreement with
Qwest Corporation.
In its written comments,Time Warner stated that “certification or some sort of similar
grant of authority by the Commission is critical to enable a competitive service provider to
obtain interconnection and other necessary inputs,as these inputs typically will not be provided
unless evidence of such certification can be furnished.”Time Warner Comments,p.2.Time
Warner asserts that state certification “facilitates the ability of service providers to obtain
interconnection,numbering resources,operating company numbers (OCN5),and other resources
necessary to route calls via the PSTN [public switch telecommunications network].”Time
Warner Comments,p.3.Time Warner contends the National Exchange Carrier Association
(NECA)requires that a service provider furnish evidence of operating authority before it will
assign an OCN to the entity,and that a company without an OCN will not be listed in the local
exchange routing guide,effectively precluding it from routing calls and paying and collecting
access charges for the traffic it carries.In addition to the authority granted the Commission
under Idaho Code §62-6 15,Time Warner points to the Commission’s authority under Section
61-501 to do all things necessary to carry out the spirit and intent of the provisions of Title 61
and 62.Idaho Code §62-602 establishes “the legislature’s intent in adopting Title 62 to
encourage effective competition and to give the Commission authority to empower competitive
providers to enter local markets in Idaho.”Time Warner Comments,p.5.Time Warner
contends that the Idaho Code does not require the Commission to adopt a particular form or
designation,and that whatever mechanism the Commission chooses it must be effective in
facilitating the ability of providers to enter the Idaho markets.Time Warner suggests the
Commission establish a new form of CPCN for providers of non-basic local exchange service or
alternatively,the Commission could issue a written Order in lieu of certification.Time Warner
Comments,pp.6-7.Regarding preservation of telephone numbers,Time Warner asserts the
alternate certification process should not result in any need for the Commission to supplement its
existing mechanisms to ensure that telephone numbers are used efficiently.
ORDER NO.32277 6
Staff in its comments summarized its experience in notifying companies that the
Commission may revoke CPCNs issued to companies that do not provide basic local exchange
service.The companies that objected to possible relinquishment of their CPCN noted that a gap
exists in the application of Idaho law and implementation of the rules relating to CLECs under
Sections 251 and 252 of the federal Act.Staff Comments,p.4.To close this gap,Staff noted
that some other states,specifically Iowa and Colorado,have approved an alternative certification
process for companies that do not provide basic local exchange service.The Iowa Commission
issues an order in lieu of Certificate,and the Colorado Commission issues a letter of registration
to these companies.
Regarding numbering resources,Staff noted that the pooling administrator at NeuStar
states that a CPCN is needed in order for a company to receive numbers.Staff Comments,p.6.
NeuStar informed Staff that the Iowa Order in lieu of Certificate is recognized as sufficient for a
company to obtain numbers.Staff believes because the Commission has authority to implement
mandatory pooling requirements,the Commission’s ability to manage numbering resources will
not be compromised by a process to recognize that wholesale providers are authorized to do
business in the state.Staff believes the Commission has authority under Idaho Code §62-615 to
establish an alternative to a CPCN for providers of non-basic local exchange service.Staff
recommended the Commission implement a procedure similar to that in Iowa and issue an Order
in lieu of Certificate.Staff further recommended that wholesale companies that receive
numbering resources acknowledge responsibility for all reporting requirements using their own
operating company number.Staff Comments,p.8.
COMMISSION DISCUSSION,FINDINGS AND CONCLUSIONS
All of the commenting parties believe that Commission recognition of wholesale
telecommunications providers will enhance or enable the companies’access to local markets and
the rights and remedies set forth in Sections 251 and 252 of the federal Telecommunications Act.
Some commenters differ on whether formal Commission recognition is necessary to obtain
interconnection agreements,but all agree it would make access to such agreements easier.Some
commenters believe Commission certification is essential for a company to acquire numbers.All
parties assert that Idaho Code §62-615 authorizes the Commission to adopt a process for
registering wholesale providers in order to implement important provisions of the federal
Telecommunications Act.
ORDER NO.32277 7
On the record in this case,the Commission finds that registration or certification of
telecommunications companies that do not provide basic local exchange service,as defined by
state law,is necessary to enable those companies to access important rights or privileges
identified in the federal Telecommunications Act as they enter the telecommunications markets
in Idaho.More specifically,Section 251 of the Act describes interconnection obligations and the
means for competitive carriers to achieve interconnection with incumbent providers.Section
251(e)directs the FCC to create a numbering administrator and to make numbers available on an
equitable basis.47 U.S.C.251(e)(l).Section 252 of the Act establishes the means for
companies to obtain interconnection agreements,whether by negotiation or arbitration through a
state commission.The evidence is undisputed that Commission registration or certification of
wholesale providers will facilitate the companies’access to these important Sections 251 and
252 rights,remedies and processes.
The Commission’s procedural rule for CPCN applications states that the certification
process enables the Commission “to register and review applications to provide local
telecommunications services.”IDAPA 31.01.01.114.The Commission finds it appropriate to
use the registration and review process described in Rule 114 to identify telecommunications
providers that do not provide local exchange service,but nonetheless request Commission
recognition to assist their entry into the Idaho markets.Commission registration of wholesale
providers will remove impediments for these companies’entry into competitive markets in
Idaho,consistent with objectives in the federal Telecommunications Act and Title 62 of the
Idaho Code.
Telecommunications companies that do not intend to provide basic local exchange
service but request Commission registration may file an application pursuant to Rule 114,with
minor modification to eliminate information required by the Rule relating to retail basic local
exchange service.Specifically,applications need not include the service and territory
information described in Section 2,the financial information in Section 3,or the tariffs and price
lists described in Section 4.A company that completes the application process as required in
Rule 114,Section 1 and Sections 5 through 8,will be recognized by the Commission as having
successfully registered as a wholesale provider of telecommunications services in Idaho.Section
8 of Rule 114 requires a commitment by companies to adhere to number pooling and reporting
ORDER NO.32277 8
requirements to assist the Commission in preserving numbers.The Commission will leave in
place CPCNs already issued;this Order does not affect those Certificates.
ORDER
IT IS HEREBY ORDERED that a telecommunications company that does not intend
to provide basic local exchange service and completes the application process as required in
Commission Rule of Procedure 114,Section 1 and Sections 5 through 8,will be recognized by
the Commission as having successfully registered as a wholesale provider of telecommunication
services in Idaho.IDAPA 31.01.01.114.
THIS IS A FINAL ORDER.Any person interested in this Order may petition for
reconsideration within twenty-one (21)days of the service date of this Order.Within seven (7)
days after any person has petitioned for reconsideration,any other person may cross-petition for
reconsideration.See Idaho Code §6 1-626.
DONE by Order of the Idaho Public Utilities Commission at Boise,Idaho this 3O
day of June 2011.
.,,
MACK A.REDFORT9O44MISSIONER
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MARSHA H.SMITH,COMMISSIONER
ATTEST:
J6a D.JewellIJ
commission Secretary
bls/O:GNR-T-l 1-Olws2
ORDER NO.32277 9