20031014Opposition to Motion to Compel by Clear Talk.pdf

Molly O'Leary, Esq. (ISB # 4996)
Richardson & O'Leary, PLLC
99 E. State Street, Suite 200
Eagle, Idaho 83616
[phone]
RE DElVED r;,FILED
2UO3 OCT 14 AM': 21
UT
lDlV-!O PUBLIC
IUTltS COMMISSION
Sean P. Farrell, Esq. (CSB # 186902)
General Counsel
IA T Communications, Inc.
NTCH-Idaho Inc., dba Clear Talk
703 Pier Avenue, Suite B, PMB 813
Hermosa Beach, CA 90254
[phone]
BEFORE THE
IDAHO PUBLIC UTILITIES COMMISSION
In the Matter of the Petition of IA T
Communications, Inc., d.a. NTCH-Idaho, Inc. )
or Clear Talk, for Designation as an Eligible
Telecommunications Carrier.
CASE NO. Docket No. GNR-O3-
In the Matter of the Application ofNPCR, INC.
dIb/ a NEXTEL PARTNERS
Seeking Designation as an Eligible
Telecommunications Carrier that may receive
Federal Universal Service Support.
CASE NO. Docket No. GNR-O3-
CLEAR TALK'S MEMORANDUM
IN OPPOSITION TO IT A'
MOTION TO COMPEL
INTRODUCTION
IAT Communications, Inc., d.a. NTCH-Idaho, Inc. ("Clear Talk") respectfully submits
this Memorandum in response to the Motion ofthe Idaho Telephone Association ("ITA"). For
the reasons set forth below, Clear Talk opposes ITA's Motion to Compel.
CLEAR TALK'S MEMORANDUM IN
OPPOSITION TO ITA'S MOTION TO COMPEL - 1
II.
ARGUMENT
In its Motion to Compel, ITA seeks to compel Clear Talk's response to Request Nos. 4
and 14. Clear Talk will address each request separately.
Request No 4
ITA's Request and Clear Talk's Response are as follows:
REQUEST NO.
Please provide copies of the documents relating to Clear Talk's decision to fIle for
ETC status in the state of Idaho, including but not limited to memorandums, board
of director minutes, management presentations, correspondence and fmancial
analysis and forecasts.
OBJECTION:
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.
(Emphasis supplied.
Clear Talk stands by its original Objection to this Discovery Request. Furthermore, ITA
bears the burden of persuading the Commission that: (1) the requested information is reasonably
calculated to lead to the discovery of admissible evidence; and (2) that its need for the requested
information outweighs Clear Talk's privilege. IT A has provided no legal basis or argument in
support of its Motion, therefore IT A has failed to carry its burden and its Motion must fail on its
face.
Because Clear Talk only seeks access to the federal universal service program, the federal
standards for eligibility control and this Commission has wisely recognized that fact. I As Clear
Talk noted in its Response to ITA's Protest:
I IPUC Order No. 29261 , pp. 3-
CLEAR TALK'S MEMORANDUM IN
OPPOSITION TO ITA'S MOTION TO COMPEL - 2
Any attempt by IT A or any other Intervenor to turn this proceeding into a fishing
expedition to dredge up irrelevant, extraneous factual matters based on a
mischaracterization of the relevant issues must be soundly rebuffed by the Commission.
Clear Talk Response, at 3.
ITA's Request No.4 is just the sort of fishing expedition that Clear Talk predicted that
IT A would attempt to get the Commission to sponsor. The Commission must decline the
invitation.
Request No. 14
Clear Talk was in the process of gathering and reviewing the requested information at the
time ITA's Motion was filed. On October 6 2003, Clear Talk informed ITA's counsel, via
electronic mail, that the information was forthcoming. Clear Talk provided the requested
information to ITA via Priority U.S. Mail on October 10 2003. Therefore this portion ofITA'
Motion to Compel is moot.
III.
ORAL ARGUMENT NOT REQUESTED
IT A did not request oral argument on its Motion. Because it failed to so request, as
required by IPUCRP 56., the Commission may decide ITA's Motion based on the record
before it: the Motion and this Memorandum in Opposition.
IV.
CONCLUSION
For the foregoing reasons, ITA's Motion to Compel must be denied.
RESPECTFULLY SUBMITTED, thi~L day of October, 2003.
RICHARDSON & O'LEARY, PLLC
CLEAR TALK'S MEMORANDUM IN
OPPOSITION TO ITA'S MOTION TO COMPEL - 3
CLEAR TALK'S MEMORANDUM IN
OPPOSITION TO ITA'S MOTION TO COMPEL - 4
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this l3ihday of October, 2003, I caused a true and
correct copy of the foregoing CLEAR TALK'S MEMORANDUM IN OPPOSITION TO
ITA'S MOTION TO COMPEL to be served by the method indicated below, and addressed to
the following:
Jean Jewell
Idaho Public Utilities Commission
472 West Washington Street
Post Office Box 83720
Boise, Idaho 83720-0074
( ) U.S. Mail, Postage Prepaid
Hand Delivered
( )
Overnight Mail
( )
Facsimile
( ) Electronic Mail
Dean J. Miller, Esq.
420 West Bannock
Post Office Box 2564-83701
Boise, Idaho 83702
[phone] (Fax)
i oe~mcdevitt -miller. com
( ) U.S. Mail, Postage Prepaid
( )
Hand Delivered
( )
Overnight Mail
()Q Facsimile
( ) Electronic Mail
Philip R. Schenkenberg, Esq.
2200 First National Bank Building
332 Minnesota Street
St. Paul, Minnesota 55101
pschenkenberg~bri ggs. com
Q() U.S. Mail, Postage Prepaid
( )
Hand Delivered
( )
Overnight Mail
( )
Facsimile
( ) Electronic Mail
Conley Ward
Givens Pursley LLP
277 North 6th Street, Suite 200
Post Office Box 2720
Boise, Idaho 83701
[phone] (Fax)
mailto: cew~givenspursley. com
( ) U.S. Mail, Postage Prepaid
( ) Hand Delivered
( ) Overnight Mail
OQ Facsimile
( ) Electronic Mail
Lance A. Tade, Manager
State Government Affairs
Citizens Telecommunications Company of
Idaho
4 Triad Center, Suite 200
Salt Lake City, UT 84180
ltade~czn.com
0() U.S. Mail, Postage Prepaid
( ) Hand Delivered
( ) Overnight Mail
( ) Facsimile
( ) Electronic Mail
CLEAR TALK
CERTIFICATE OF SERVICE - 1
Charles H. Creason, Jr.
President and General Manager
Project Mutual Telephone Cooperative
Association, Inc.
507 G Street
Post Office Box 366
Rupert, Idaho 83350
John Hammond, Deputy
Idaho Public Utilities Commission
472 West Washington Street
Boise, Idaho 83720-0074
[phone] (Fax)
ihammon~puc.state.id. us
Clay Sturgis, Senior Manager
MOSS ADAMS LLP
601 Riverside, Suite 1800
Spokane, WA 99201-0063
clays~mossadams.com
Morgan W. Richards, Esq.
Moffatt, Thomas, Barrett, Rock & Fields
101 S. Capitol Blvd, 10th Floor
P. O. Box 829
Boise, Idaho 83701-0829
[phone] (Fax)
mwr~moffatt.com
Mary S. Hobson
Stoel Rives LLP
101 S. Capitol Blvd, Suite 1900
Boise, Idaho 83702-5958
[phone] (Fax)
mshobson~stoel.com
CLEAR TALK
CERTIFICATE OF SERVICE - 2
()() U.S. Mail, Postage Prepaid
( ) Hand Delivered
( )
Overnight Mail
( ) Facsimile
( ) Electronic Mail
( ) U.S. Mail, Postage Prepaid
( ) Hand Delivered
( ) Overnight Mail
()Q Facsimile
( ) Electronic Mail
~ U.S. Mail, Postage Prepaid
( ) Hand Delivered
( ) Overnight Mail
( ) Facsimile
( ) Electronic Mail
( ) U.S. Mail, Postage Prepaid
( ) Hand Delivered
( ) Overnight Mail
Facsimile
( ) Electronic Mail
( ) U.S. Mail, Postage Prepaid
( ) Hand Delivered
( ) Overnight Mail
Cf4 Facsimile
( ) Electronic Mail
Robert M. Nielsen
548 E Street
Post Office Box 706
Rupert, Idaho 83350
00 U.S. Mail, Postage Prepaid
( )
Hand Delivered
( ) Overnight Mail
( )
Facsimile
( ) Electronic Mail
Signed
~~.
UJ..A
Nina M. Curtis
CLEAR TALK
CERTIFICATE OF SERVICE - 3