20110325Time Warner Comment.pdf

BAJ'T FISH MANLLP
March 25,2011
, jr~batt.com
p 208.§:.l000::Oe ::
~":~5: ~::0 N
;;!-r¡ UJ
;'''',1 ".;.~.
~!i:~d;- -0::;:' " ::
cr: ., .:
;;'moni
John R. Hammond, Jr.
Attorney at Law
ATTORNEYS AND COUNSELORS AT LAW
-~--rn:::'.
tCi
Via Hand Delivery
f"""...--oo';~-
Jean Jewell, Commission Secreta
IDAHO PUBLIC..UTILITIES COMMISSION
472 W. Washingion Street
P. O. Box 83720
Boise, Idaho 83720-0074
RE: In the Matter of an Investigation. of an Appropriate Certfication Pro"Cess for
Telecommunicátions Companies That Do Not Provide Basic Local Exchange
Service; 'Case No. GNR-T-ll-Ol
Dear Ms. Jewell:
Enclosed for fiing are the original ard nine (9) copies of the Comments òfTime Warner
Cable Information Services (Idaho), LLC, in response to the Notice of Investigation andNotice
Of Modifed Procedure' adopted by the Commission on Februar 25,,2011. Please provide a
conformed copy of tle same to my offce. .
Than you for your assistace. If questions arise or additional information is required,
please do not hesitate to contact me.
Sincerely,
ALERM, Lr"P
o R. HAOND, JR.
omeyatLaw
JRfd
Enclosures
cc: Client
T 208.331.1000 . F 208.331.2400 . p.a.Box 1308 Boise, Id 83701 . Suite 500, US Bank Plaza 101 S. Capitol Blvd. Boise, Id 83702
--c:z-(!-0:o
John R. Hamond, Jr., ISB No. 5470
BATT FISHER PUSCH & ALDERMAN, LLP
U.S. Ban Plaza, 5th Floor
101 S. Capitol Boulevard, Suite 500
Post Office Box 1308
Boise,ID 83701
Telephone: [phone]
Facsimile: 208.331.2400
E-Mail: jrhØ)battfisher.com
Attorney for Time Warner Cable Information Services (Idaho), LLC
RECEi D
2011 MAR 2S PH a: 00
Before the
IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF AN
INVESTIGATION OF AN APPROPRIATE
CERTIFICATION PROCESS FOR
TELECOMMUNICATIONS COMPANIES
THAT DO NOT PROVIDE BASIC LOCAL
EXCHANGE SERVICE
) Case No. GNR-T-ll-Ol
)
)
)
)
)
)
)
)
COMMENTS OF TIME WARNER
CABLE INFORMATION
SERVICES (IDAHO), LLC
Time Warer Cable Information Services (Idaho), LLC, d//a Time Warer Cable
("TWCIS"), by and through its attorneys of record, hereby submits these comments in response
to the Notice of Investigation and Notice of Modifed Procedure ("Notice") adopted by the
Commission on February 25, 2011. i In the Notice, the Commission "open(s) 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."i TWCIS
appreciates the Commission's willngness to entertain this proposal, the adoption of which would
i
An Investigation of an Appropriate Certifcation Process for Telecommunications Companies That Do Not
Provide Basic Local Exchange Service, Case No. GNR-T-II-0l, Order No. 32194 (Feb. 25, 201 1).
Notice at 2.
COMMENTS OF TIME WARNER CABLE INFORM A TION SERVICES (IDAHO), LLC - Page 1
faciltate the abilty of competitive service providers, including wholesale providers like TWCIS,
to enter the Idaho market.
As TWCIS has explained previously, 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 necessar inputs, as these inputs typically wil not be provided unless
evidence of such certification can be fuished. While a carier that intends to provide a "basic
local exchange service," as defined by the Commission, can obtain a certificate of public
convenience and necessity ("CPCN") under the Commission's existing procedures, a provider
intending to offer a service that does not fit squarely withn that definition canot do so. This
restrction creates a potentially insurountable barier to the ability of that provider to enter the
Idaho market.
This barier, although an unintentional one, likely contravenes federal law and well-
established federal and state policies that favor greater telecommunications competition. The
reality is that TWCIS's inability to obtain a CPCN or some other form of certification in Idaho
may yet prevent TWCIS from obtaining the inputs required to offer local exchange services in
Idaho.3
TWCIS remaInS intent on facilitating the provision of competitive voice service to
Idaho's citizens by offering competitive, facilities-based wholesale and retail local intrastate
telecommunications services within the state.4 However, the Commission's determination that it
3 See Application of Time Warner Cable lriormation Services (Idaho), LLC for a Certifcate of Public
Convenience and Necessity to Provide Local Exchange and Interexchange Telecommunications Services within
the State of Idaho, Case No. TIM- T -08-01, Order No.3 1012 (Feb. 23, 2010), recon. denied, Order No. 32059
(Aug. 27, 2010).
4 TWCIS's services wil include a Local Interconnection Service that wil enable two-way interconnection
between the facilities of TWCIS's customers and the public switched telephone network ("PSTN"). TWCIS
wil offer this service on a wholesale basis to providers of interconnected Voice over Internet Protocol ("VoIP")
services, and wil provide these customers with two-way interactive switched voice communications, as well as
COMMENTS OF TIME WARNER CABLE INFORMATION SERVICES (IDAHO), LLC - Page 2
would or could not issue to TWCIS any form of certification has unfortunately frstrated that
objective. Accordingly, TWCIS welcomes and urges the Commission to promptly establish a
process for the certification of competitive service providers that do not offer "basic" local
exchange service.
DISCUSSION
I. CERTIFICATION IS NECESSARY FOR COMPANIES OFFERING SERVICES
OTHER THAN "BASIC LOCAL EXCHANGE SERVICE" TO COMPETE IN
THE IDAHO MARKT
The Notice asks whether certification by the Commission is "necessary for companies
providing telecommunications services but not basic local exchange service.,,5 As TWCIS has
explained previously, certification by the Commission is critical to enable a competitive service
provider to obtain inputs that are prerequisites to operating as a local exchange carier in Idaho.
6
Among other things, such certification facilitates the ability of service providers to obtain
interconnection, numbering resources, Operating Company Numbers ("OCNs"), and other
resources necessary to route calls via the PSTN. Because a process already exists for granting
CPCNs to providers of "basic local exchange service," those providers enjoy a competitive
advantage in entering the Idaho market. Establishing a parallel process to enable providers of
non-basic local exchange services to obtain certification from the Commission would help to
access to domestic and international toll services, operator services, telephone number resources, 91 1 callng,
and related services and features.
5 Notice at 3.
6 See Application of Time Warner Cable Information Services (Idaho), LLC for a Certifcate of Public
Convenience and Necessity to Provide Local Exchange and Interexchange Telecommunications Services within
the State of Idaho, Case No. TIM-T-08-01, Testimony of Julie Patterson Laine on Behalf of Time Warner Cable
Information Services (Idaho), LLC, at 6-8 (May 13,2010) ("Testimony of Julie Laine").
COMMENTS OF TIME WARNER CABLE INFORMATION SERVICES (IDAHO), LLC - Page 3
create a level playing field for all service providers that would facilitate intrastate competition
and benefit Idaho consumers.7
Notably, incumbent local exchange carers ("ILECs") typically will refuse to
interconnect with an entity that does not hold a CPCN. In fact, Verizon initially refused to enter
into an Idaho interconnection agreement with TWCIS because it could not produce a CPCN,
even after TWCIS had explained that the Commission had ruled that TWCIS did not require a
CPCN to obtain interconnection in Idaho.
8 Although TWCIS ultimately was able to secure an
interconnection agreement in Idaho, it took months before the incumbent carer was wiling to
proceed with an agreement in the absence of a CPCN. TWCIS faced an unfair disadvantage by
being forced to expend significant time and resources to obtain that agreement. Those burdens
presumably would have been avoided if the Commission had issued TWCIS a certificate upon its
satisfaction of the relevant criteria.
Service providers that lack certification also face diffculties in 1) obtaining numbering
resources for their customers; and 2) ensurng that calls are routed accurately. The North
American Numbering Plan Administrator ("NANP A") wil not assign telephone number blocks
to a provider that is not certificated by the relevant state commission.9 Similarly, the National
Exchange Carer Association ("NECA") requires that a service provider fuish evidence of
operating authority before it wil assign an OCN to the entity. i 0
7 TWCIS has argued that the Commission has discretion to treat services such as wholesale interconnection
services as "basic" under Idaho law, but TWCIS assumes arguendo, in light of recent Commission rulings, that
such wholesale services would not qualitY as basic and thus would require an alternative form of certification.
See id at 7.8
9 See, e.g., Telephone Number Requirements for IP-Enabled Service Providers, Report and Order, 22 FCC Red
i 953 i, at' i 2 (2007) (noting that NANP A "provides numbers only to entities that are licensed or certificated as
carriers under the (Federal Communications) Act.").
io TWCIS has faced a long uphil battle to secure an OCN assignment from NECA. After flatly refusing to
provide an OCN for many months, NECA requested that TWCIS produce an order from the Commission that
COMMENTS OF TIME WARNER CABLE INFORMATION SERVICES (IDAHO), LLC - Page 4
Without an OCN, an entity canot be listed in the Local Exchange Routing Guide
("LERG") - which effectively precludes the entity from routing calls, as well as paying and
collecting access charges for the traffic it carres. Again, the uncertainty and expense of
attempting to obtain telephone number blocks or an OCN without a CPCN could be avoided if
the Commission would issue a certificate to providers of services other than "basic local
exchange services."
II. THE COMMISSION HAS BROAD AUTHORITY TO CERTIFICATE SERVICE
PROVIDERS OFFERING SERVICES OTHER THAN "BASIC LOCAL
EXCHANGE SERVICE," AND TO CHOOSE THE FORM OF SUCH
CERTIFICATION
In the Notice, the Commission seeks comment with respect to its legal authority to issue
certifications other than CPCNs, and what form such certification might take.
i i Idaho law gives
the Commission broad authority to promote effective competition within the state's borders.
Notably, Idaho Code § 61-501 authorizes the Commission to "do all things necessar to car
out the spirit and intent of the provisions" of Titles 61 and 62. Idaho Code § 62-602
("Legislative Intent") clearly establishes that the legislature's intent in adopting Title 62 was to
encourage effective competition and to give the Commission the authority to empower
competitive providers to enter local markets in Idaho.
12 As acknowledged by the legislatue,
"effective competition" requires "substantive and meaningful competition throughout the ... local
exchange callng area.,,13
states that TWCIS is legitimately offering CLEC telecommunications services within Idaho and an
interconnection agreement that shows that the ILEC considers TWCIS a CLEC for interconnection puroses.
TWCIS recently may have been able to resolve this issue, but it has been a time-consuming and costly
undertaking.
I i Notice at 3.
12 See Testimony of Julie Laine, at 5-6.
13 Idaho Code § 62-602(2).
COMMENTS OF TIME WARNER CABLE INFORMATION SERVICES (IDAHO), LLC - Page 5
For the reasons noted above, such competition is effectively unattainable without some
process for certificating providers that do not offer "basic local exchange service." While Idaho
Code § 62-604 exempts certain competitive service providers from the obligation to obtain
CPCNs - which the legislature viewed as needlessly burdensome - nothing in that provision
forecloses the Commission from otherwse authorizing providers to operate in Idaho where such
authorization is necessar for providers to enter the market and compete effectively.14
The Commission also has the "full power and authority to implement the federal
telecommunications act of 1996,,,15 which secures the right of telecommunications carers,
including wholesale carers like TWCIS, to enter local markets and obtain interconnection,
numbers, and other critical inputs from ILECs.16 As a practical matter, a carier can only
exercise these federal rights if it first obtains certification from the Commission. Accordingly,
Idaho Code § 62-615 provides the Commission with the authority to implement mechansms to
ensure that these federal rights are realized - including the proposed certification process.
For similar reasons, the Commission has broad authority to dictate the manner in which it
certificates providers of services other than "basic local exchange service." Simply put, Idaho
Code does not require the Commission to adopt a paricular form or designation -although for
the reasons set forth above, the Commission should ensure that whatever mechanism it chooses
is effective in facilitating the ability of such providers to enter the Idaho market. The most
straightforward option would be for the Commission to exercise its discretion to establish a new
14 See Testimony of Julie Laine, at 6.
15 Idaho Code § 62-6 i 5(1).
16 See 47 U.S.c. § 251. The FCC has held that carriers that provide wholesale services, like TWCIS, are entitled
to the same interconnection rights as retail carriers. See, e.g., Time Warner Cable Request for Declaratory
Ruling that Competitive Local Exchange Carriers May Obtain Interconnection Under Section 251 of the
Communications Act, as Amended, to Provide Wholesale Telecommunications Services to VoIP Providers,
Memorandum Opinion and Order, 22 FCC Rcd 3513 (2007).
COMMENTS OF TIME WARNER CABLE INFORMA nON SERVICES (IDAHO), LLC - Page 6
form ofCPCN for providers of non-basic local exchange service. Alternatively, the Commission
could choose to issue a written order in lieu of certification - as long as such an order makes
crystal clear that the carrier in question is properly authorized to operate in Idaho and entitled to
all of the inputs and other benefits guaranteed to local carrers under federal and state law.
In contrast, if the Commission declined to establish any process for authorizing the
provision of non-basic local exchange services, such a decision, in TWCIS's opinion, would be
detrimental to telecommuncations competition in the State of Idaho. The Commission
accordingly has the opportunity to assist in the removal of such obstacles to intrastate
competition by facilitating the entr of competitive carers through an appropriate certification
process.
III. ALL LOCAL SERVICE PROVIDERS SHOULD BE SUBJECT TO THE SAME
TELEPHONE NUMBER CONSERVATION MEASURE
Finally, the Notice seeks comment on measures "to ensure numbers are used efficiently
by CLECs and other telecommunications providers.,,17 Presumably, the Commission is
interested in ascertaining whether new or different measures would be needed if the Commission
implements the proposed process for certificating providers of services other than "basic local
exchange services." If the Commission does implement such a process, it should not result in
any need for the Commission to supplement its existing mechanisms to ensure that telephone
numbers are used efficiently. Telephone numbers can and should be assigned in the same
manner regardless of the service that a particular end-user customer selects, subject to the same
rules for the assignment of number block resources.
In Time Warner Cable's case, telephone numbers would be assigned to the wholesale
carrier (TWCIS) rather than the non-carrier entity that provides retail VoIP service. However, a
i 7 Notice at 3.
COMMENTS OF TIME WARNER CABLE INFORM A TION SERVICES (IDAHO), LLC - Page 7
provider's adherence to that structure should have no impact on numbering policies, which
already treat basic and "other-than-basic" local exchange services in a consistent manner.
CONCLUSION
The Commission can more effectively promote telecommunications competition within
Idaho by issuing certificates that enable service providers that intend to offer services other than
"basic local exchange services" to obtain the inputs they need. The Idaho Code grants broad
authority to the Commission for issuing such certifications. TWCIS respectfully encourages the
Commission to take this necessar step towards removing the barrier to entry for competitive
cariers into the Idaho market.
DATED This 25th day of March, 2011.
Respectfully Submitted,
JOHN . AMMOND, JR.
BAT i ER PUSCH & ALDERMAN, LLP
Attorney for Time Warner Cable
Information Services (Idaho), LLC
COMMENTS OF TIME WARNER CABLE INFORMATION SERVICES (IDAHO), LLC - Page 8
CERTIFICATE OF SERVICE
I HEREBY CERTIFY That on this 25th day of March, 2011, I caused a tre and correct
copy of the foregoing to be served upon the following individual(s) in the maner indicated:
Jean Jewell
IDAHO PUBLIC UTILITIES COMMISSION
472 W. Washington St.
P.O. Box 83720
Boise,ID 83720-5983
Weldon Stutzman
Deputy Attorney General
IDAHO PUBLIC UTILITIES COMMISSION
472 W. Washington St.
P.O. Box 83720
Boise, ID 83720-5983
i: Hand Delivery
D U.S. Mail (postage prepaid)
D Facsimile (208.342.3829)
D Federal Express
D Electronic Transmission
i: Hand Delivery
D U.S. Mail (postage prepaid)
D Facsimile (208.342.3829)
D Federal Express
D Electronic Transmission
~/
COMMENTS OF TIME WARNER CABLE INFORMATION SERVICES (IDAHO), LLC - Page 9