20030626Clear Talk Response.pdf

Molly O'Leary, Esq. (ISB # 4996)
Richardson & O'Leary, PLLC
99 E. State Street, Suite 200
Eagle, Idaho 83616
[phone]
Sean P. Farrell, Esq.
General Counsel
IA T Communications, Inc.
NTCH-Idaho Inc., dba Clear Talk
703 Pier Avenue, Suite B, PMB 813
Hermosa Beach, CA 90254
[phone]
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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.
In the Matter of the Application ofNPCR, INC.
d/b/a NEXTEL PARTNERS
Seeking Designation as an Eligible
Telecommunications Carrier that may receive
Federal Universal Service Support.
CASE NO. GNR-O3-
CASE NO. GNR-O3-
RESPONSE OF CLEAR TALK TO
THE PROTEST, COMMENTS AND
MOTION FOR STAY OF CITIZENS
ETAL
IA T Communications, Inc., and NTCH-Idaho, Inc., collectively doing business as Clear
Talk ("Clear Talk") hereby respond to the "Protest, Comments and Motion for Stay" filed by
Intervenor Citizens Telecommunications Company of Idaho ("Citizens ) and the self-declared
Protestants" - Potlatch Telephone Company, CenturyTel ofIdaho, and CenturyTel ofthe Gem
State - in the above combined cases.
PROCEDURAL ISSUE
Pursuant to the Idaho Public Utilities Commission s ("Commission ) Rules of Procedure
CLEAR TALK'S RESPONSE TO
CITIZENS' PROTEST , COMMENTS AND MOTION FOR STAY
the self-declared "Protestants" are not parties to this proceeding. See IDAP A 31.01.01.031
037. Therefore, they are not entitled to "appear at hearing or argument, introduce evidence
examine witnesses, make and argue motions, state positions" or otherwise participate in hearings
or arguments. IDAP A 31.01.01.038. Consequently, the "Protest, Comments and Motion for
Stay" as filed by the self-declared "Protestants" must be stricken from the record by the
Commission.
MOTION FOR STAY
Citizens ' Motion for Stay must be denied. To rule otherwise would result in complete
telecommunications gridlock in Idaho for the simple reason that, if Citizens' logic were
followed, then any regulatory proceeding whatsoever could and should be suspended indefinitely
on the premise that federal law may change at some indefinite point in the future. If the
Commission buys Citizens ' argument that whenever a related telecommunications issue is
pending before the Federal Communications Commission ("FCC") this Commission must refrain
from any action within its jurisdiction, then the Commission may as well turn all
telecommunications regulatory authority in Idaho over to the FCc.
Clear Talk has already committed to providing the universal services outlined in 47 C.
R ~ 54.101(a) throughout the services areas for which it has requested Eligible
Telecommunications Carrier ("ETC") designation.! Likewise, Clear Talk has committed to
providing those services through its own facilities and, where necessary, through others
facilities by contract,2 Clear Talk has also committed to advertising the availability of such
services throughout the relevant service areas? Indeed, the Commission has already found that
! Clear Talk Application at 4 - 7; see also Commission Order No. 29261 , dated June 11 , 2003.
Id. at 8.
Id.
CLEAR TALK'S RESPONSE TO
CITIZENS' PROTEST , COMMENTS AND MOTION FOR STAY
Clear Talk meets the requirements for ETC designation in Qwest-served exchange areas in
Idaho.4 Therefore, the only issue before this Commission is whether designation of Clear Talk
as an ETC in rural exchange areas is in the public interest. 47. U.~ 214(e)(1) & (e)(2).
PERIOD. The law on that issue is clear and this Commission does not need to wait for the FCC
to weigh in further on that inquiry. Nor should the Commission suspend Clear Talk'
Application indefinitely while the FCC examines the Universal Services Fund as a whole.
Citizens ' attempt to somehow transform Clear Talk's Application proceeding into a referendum
on the entire federal universal services fund should be rejected out of hand.
Furthermore, the delivery of universal wireless service to rural Idaho consumers should
not be held up on the mere speculation that the current law may change, at some indefinite point
in the future. If that were the standard, then the other state commissions that have already
granted competitive ETC status to wireless carriers operating in rural areas within their
jurisdiction would not have acted. Obviously, none ofthose commissions were concerned that a
subsequent change in FCC policy would lead to an unfair advantage for incumbent ETCs. In the
event that applicable federal law changes at some point in the future, this Commission is fully
equipped to issue appropriate modification orders, if any, on an as-needed basis.
As for Citizens' professed concern that a subsequent change in FCC policy would lead to
an unfair advantage "as to one or more CETCS", Citizens does not have standing to raise an
argument on behalf of its competition.
CONCLUSION
Clear Talk is entitled to have its Application considered by the Commission based on the
law in existence at the time of its Application. The only issue before this Commission is whether
4 Commission Order No. 29261
, dated June 2003.
CLEAR TALK'S RESPONSE TO
CITIZENS' PROTEST , COMMENTS AND MOTION FOR STAY
designation of Clear Talk as an ETC in the subject rural exchange areas is in the public interest.
The citizens ofIdaho are entitled to have universal wireless service deployed as quickly as
technologically feasible, and the citizens in rural Idaho are no less entitled. That is precisely the
public interest" this Commission is charged with promoting. This Commission must resist any
effort by Citizens or any other incumbent ETCs to throw a self-serving roadblock up on the
information highway.
RESPECTFULLY SUBMITTED, this 26th day of June, 2003.
RICHARDSON & O'LEARY, PLLC
s Citizens' Protest at 2.
CLEAR TALK'S RESPONSE TO
CITIZENS' PROTEST , COMMENTS AND MOTION FOR STAY
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I have, this 26th day of June, 2003 , served the foregoing RESPONSE
OF CLEAR TALK TO PROTEST, COMMENTS AND MOTION FOR STAY BY CITIZENS
ET AL as indicated below:
Jean Jewell, Secretary
Idaho Public Utilities Commission
472 W. Washington Street
Boise, Idaho 83720
[phone]
( )U.S. Mail, Postage Prepaid
~Hand Delivered
( )Overnight Mail
( )Facsimile
Dean J. Miller
McDevitt & Miller LLP
O. Box 2564
Boise, Idaho 83701
ioe~mcdevitt -miller. com
[phone] (Fax)
( ) U.S. Mail, Postage Prepaid
( ) Hand Delived
( ) Overnight Mail
CXI Facsimile
Counsel for Nextel Partners
Philip R. Schenkenberg
Briggs and Morgan, P.
2200 First National Bank Building
St. Paul, Minnesota 55101
pschenkenb erg~ bri ggs. com
(x:'J U.S. Mail, Postage Prepaid
( )
Hand Delivered
( ) Overnight Mail
( ) Facsimile
Counsel for Nextel Partners
Conley E. Ward, Jr.
GIVENS PURSLEY, LLP
O. Box 2720
Boise, Idaho 83701-2720
cew~givenspursley.com
[phone] (Fax)
( ) U.S. Mail, Postage Prepaid
( )
Hand Delivered
( ) Overnight Mail
Facsimile
Counsel for Idaho Telephone Association
Clay Sturgis, Senior Manager
MOSS ADAMS LLP
601 Riverside, Suite 1800
Spokane, WA 99201-0063
clays~mossadams.com
CX)U.S. Mail, Postage Prepaid
( )
Hand Delivered
( ) Overnight Mail
( ) Facsimile
Counsel for Idaho Telephone Association
CERTIFICATE OF SERVICE
IA T Communications, Inc. dba Clear Talk
Morgan W. Richards, Esq.
Moffatt, Thomas, Barrett, Rock & Fields
101 S. Capitol Blvd, 10th Floor
P. O. Box 829
Boise, Idaho 83701-0829
mwr~moffatt.com
[phone] (Fax)
( ) U.S. Mail, Postage Prepaid
( )
Hand Delivered
( ) Overnight Mail
(X) Facsimile
Counsel for Citizens Telecommunications Company of Idaho
Lance A. Tade, Manager ~) u.S. Mail, Postage Prepaid
State Government Affairs
( )
Hand Delivered
Citizens Telecommunications Company of Idaho ( ) Overnight Mail
4 Triad Center, Suite 200 ( ) Facsimile
Salt lake City, Utah 84180
1tade~czn.com
Counsel for Citizens Telecommunications Company of Idaho
Mary S. Hobson
Stoel Rives LLP
101 S. Capitol Blvd, Suite 1900
Boise, Idaho 83702-5958
mshobson~stoe1.com
[phone] (Fax)
( ) U.S. Mail, Postage Prepaid
( )
Hand Delivered
( ) Overnight Mail
I)() Facsimile
Counsel for Qwest Corporation
Robert M. Nielsen, Esq.
O. Box 706
Rupert, Idaho 83350
[phone] (Fax)
)u.S. Mail, Postage Prepaid
( )
Hand Delivered
( )
Overnight Mail
f)() Facsimile
Counsel for Project Mutual Telephone
Cooperative Association, Inc.
CERTIFICATE OF SERVICE
IA T Communications, Inc. dba Clear Talk
Charles H. Creeson, Jr.
President & General Manager
Project Mutual Telephone Cooperative Association, Inc.
O. Box 366
Rupert, Idaho 83350
lX5u.s. Mail, Postage Prepaid
( )
Hand Delivered
( )Overnight Mail
( )Facsimile
John Hammond, Deputy AG
Idaho Public Utilities Commission
472 W. Washington Street
Boise, Idaho 83720-0074
ihammon~puc.state.id. us
[phone] (Fax)
( )U.S. Mail, Postage Prepaid
( )Hand Delivered
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()4F acsimile
Commission Staff
Signed:
CERTIFICATE OF SERVICE
IA T Communications, Inc. dba Clear Talk