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Home My WebLink About20031007Opposition to ITA Motion to Compel.pdfORIGINAL McDEVITT & MILLER, LLP Dean 1. 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 - miller .com HECEIVED mF!LED 21BlOGT - 7 AHIO:S' IDt\HO FUBLIC UTILITIES COMMISSION 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 psc henken berg~ bri ggs. 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- NEXTEL PARTNERS' MEMORANDUM IN OPPOSITION TO IDAHO TELEPHONE ASSOCIATION'S MOTION TO COMPEL RESPONSES TO DISCOVERY REQUEST NO. I. INTRODUCTION NPCR, Inc. d/b/a Nextel Partners ("Nextel Partners respectfully submits this memorandum in response to the motion of The Idaho Telephone Association ("IT A") to compel discovery responses. For the reasons set forth below, ITA's Request No.4 is not reasonably calculated to lead to the discovery of relevant and admissible evidence in this proceeding. Rather, IT A's request is a thinly veiled "fishing expedition" plainly intended to unduly burden Nextel Partners and forestall competitive entry within the ITA members ' service areas. As such ITA's motion to compel Nextel Partners' response to Request No.4 should be denied. II. ARGUMENT ITA erroneously seeks to compel Nextel Partners ' response to Request No.4. ITA' discovery request and Nextel Partners' response are as follows: REQUEST NO. Please provide copies of the documents relating to Nextel's decision to file for ETC status of Idaho, including but not limited to memorandums, board of directors minutes, management presentations, correspondence and financial analysis and forecasts. OBJECTION: Nextel Partners objects to this request as calling for information that is neither admissible nor reasonably calculated to lead to the discovery admissible evidence. To the extent this request seeks information not previously disclosed in public documents such information is confidential , privileged and a Trade Secret. (Emphasis added). Although the initial basis for Nextel Partners' objection to Request No.4 is clearly stated that ITA's request is not reasonably calculated to lead to the discovery of any information related to the issues presented in this proceeding - IT A offers the Commission no legal or factual argument or authority to support its present motion. Rather, ITA simply repeats its discovery request and asks that Nextel Partners be compelled to answer. This is not enough. I Nextel Partners maintains that the information sought by ITA is confidential and proprietary business information. In the event Nextel Partners becomes obligated to produce this information, it will only do so subject to the confidentiality agreement and protective order in this proceeding. NEXTEL PARTNERS' MEMORANDUM IN OPPOSITION TO IDAHO TELEPHONE ASSOCIATION'S MOTION TO COMPEL RESPONSES TO DISCOVERY REQUEST NO.Page 2 Pursuant to IPUC Procedural Rule 221(5), the scope of discovery available to ITA is governed by the Idaho Rules of Civil Procedure 26(b), which provides in relevant part: Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows: (1) 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 Id (emphasis added). Accordingly, ITA must as a threshold explain how or why its information request is reasonably calculated to lead to the discovery of admissible evidence. Because IT has failed to make such a showing, its motion to compel should be denied. In any event, even if ITA had attempted to support its present motion, it would have failed. Nothing in the Telecommunications Act of 1996 (the "Act") or state law makes any pre- filing discussion, analysis or decision-making by the ETC applicant relevant to the application proceeding. Rather, the sole criteria for ETC designation are set forth in 47 U.C. ~ 214(e)(l)- (2) and 47 C.R. ~ 54.101 , which generally require that the applicant demonstrate (1) it is a common carrier; (2) it has the capability and commitment to provide the supported services by use of its own equipment or a combination if its own equipment and that of other providers; (3) it will advertise the availability and cost of the supported services in media of general distribution; and (4) in areas served by a rural telephone company, that its designation is in the public interest. Accordingly, there is no legal basis for reviewing an applicant's internal, decision-making process related to its filing of an ETC application. NEXTEL PARTNERS' MEMORANDUM IN OPPOSITION TO IDAHO TELEPHONE ASSOCIATION'S MOTION TO COMPEL RESPONSES TO DISCOVERY REQUEST NO.Page 3 Indeed, the Texas State Office of Administrative Hearings recently rejected a nearly identical discovery request directed to Nextel Partners. In that proceeding, the Administrative Law Judge ("ALJ") 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 SOAH Docket No. 473-03-3673 , PUC Docket No. 27709 Order No.at 12-13 (Aug. 29 2003) The objection is sustained and the motion is denied. The ALJ finds that (intervenor) has again failed to demonstrate why the reason Nextel (Partners) seeks ETC status in Texas is relevant in this proceeding.) Moreover, Nextel Partners is not aware of any ETC proceeding in which discovery into the applicant's pre-filing analysis or decision-making process was permitted. Consequently, ITA's motion should be denied as exceeding the scope ofIdaho R. Civ. P. 26(b). III. ORAL ARGUMENT NOT REQUESTED As the Commission will note, ITA did not request oral argument in its Motion. See IPUCRP 56.03: "If the moving party desires oral argument or hearing on the motion, the moving party must so state in the motion. Nextel Partners does not request oral argument. Accordingly, the Commission may decide the Motion based on the record, consisting of the Motion and this Memorandum. IV. CONCLUSION For the forgoing reasons, ITA's Request No.4 is not reasonably calculated to lead to the discovery of admissible evidence, and its motion to compel must, therefore, be denied. See http://interchange.puc.state.tx.us/WebApp/Interchange/Documents/27709 _59 - 406450.PDF NEXTEL PARTNERS' MEMORANDUM IN OPPOSITION TO IDAHO TELEPHONE ASSOCIATION'S MOTION TO COMPEL RESPONSES TO DISCOVERY REQUEST NO.Page 4 Respectfully submitted Dated: October , 2003 . R, INc. d/b/a NEXTEL PARTNERS 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 NEXTEL PARTNERS' MEMORANDUM IN OPPOSITION TO IDAHO TELEPHONE ASSOCIATION'S MOTION TO COMPEL RESPONSES TO DISCOVERY REQUEST NO.Page 5 CERTIFICATE OF SERVICE I hereby certify that on October 7, 2003 I caused to be served true and correct copies of the foregoing document Nextel Partners' Memorandum In Opposition To Idaho Telephone Association s Motion To Compel Responses Discovery Request No.by the methode s) indicated, upon: Sean P. Farrell, General Counsel IAT COMMUNICATIONS, INc. 703 Pier Avenue, Suite B; PMB 813 Hermosa Beach, California 90254 sfarrell (g)cleartalk. net Attorney for IA Communications, Inc. Molly O'Leary RICHARDSON Cst O'LEARY 99 East State Street, Suite 200 P.o. Box 1849 Eagle, Idaho 83616 moll y(g)ri chards 0 nan do leafY . com Attorney for IA Communications, Inc. Conley E. Ward, Jr. GIVENS PURSLEY, LLP 227 North 6th Street, Suite 200 O. Box 2720 Boise, Idaho 83701~ 2720 cew(g)gi venspursley .com Attorney for Idaho Telephone Association Clay Sturgis, Senior Manager Moss ADAMS LLP 601 Riverside, Suite 1800 Spokane, Washington 9920l~0063 clays(g)mossadams.com Attorney for Idaho Telephone Association Morgan W. Richards MOFFATTHOMASBARRETIRoCK&: FIELDS 101 So. Capitol Blvd., 10th Floor O. Box 829 Boise, Idaho 83701 mwDiYmoffatt.com Attorneys for Citizens decommunications of Idaho Lance A. T ade, Manager State Government Affairs CmzENs TELECOMMUNICATIONS OF IDAHO 4 Triad Center, Suite 200 Salt Lake City, Utah 84180 Itade(g)czn.com Attorney for Citizens decommunications of Idaho L~;/..q; 1/ ~. CERTIFICATE OF SERVICE Hand Delivered Federal Express S. Mail Telecopy Hand Delivered Federal Express S. Mail Telecopy Hand Delivered Federal Express S. Mail Telecopy Hand Delivered Federal Express S. Mail Telecopy Hand Delivered Federal Express S. Mail Telecopy Hand Delivered Federal Express S. Mail Telecopy Mary S. Hobson STOR RIVES LLP &' 101 So. Capitol Blvd., Suite 1900 0 Boise, Idaho 83702 mshobson(g)stoel.com Attorneys for ~west Corporation Robert M. Nielsen ATTORNEY AT LAw ~ P.O. Box 706 0 Rupert, Idaho 83350 Attorney for Project Mutual Telephone Cooperative Association, Inc. Charles H. Creason, Jr. President Cst General Manager PRQJECT MUTUAL TELEPHONE COOP.0" 507 G Street O. Box 366 Rubert, Idaho 83350 ccreason(g)pmt.coop John Hammond, Deputy AG 0 /' ID PUBLIC UTILITIES COMMISSION fa' 472 West Wasington Street O. Box 83720 Boise, Idaho 83720~0074 jhammon (g)puc. sta te.id. us Commission Staff Hand Delivered 0 Federal Express S. Mail Telecopy Hand Delivered Federal Express S. Mail Telecopy Hand Delivered 0 Federal Express S. Mail Telecopy 0 Hand Delivered Federal Express S. Mail Telecopy Email