20040312Western Wireless Opposition.pdf

ORiGiNAL
Gene DeJordy, Esq.
Vice President of Regulatory Affairs
Western Wireless Corporation
3650 1315t Ave., SE
Bellevue, Washington 98006
Telephone No: 425-586-8055
Fax No: 425-586-8118
Email: gene.deiordy~wwireless.com
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BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE PETITION
OF IDAHO TELEPHONE ASSOCIATION FOR
SUSPENSION OF NUMBER PORT ABILITY
REQ UIREMENTS
) Case No. GNR-O4-
WESTERN WIRELESS' CONDITIONAL OPPOSITION TO ITA'S PETITION
FOR TEMPORARY SUSPENSION
WWC Holding Co., Inc., doing business in Idaho as Cellular One ("Western
Wireless ), hereby submits its Comments on the Petition for a Temporary Suspension of
Wireline To Wireless Number Portability Responsibilities ("Petition ) filed by the Idaho
Telephone Association ("ITA") member companies. For the reasons explained herein
Western Wireless opposes the Petition, unless the following conditions are imposed upon
any suspension onT A's members' local number portability ("LNP") obligations:
the length of any temporary suspension is the earlier of 180 days from a
final order in this proceeding or November 24 2004;
IT A members are required to file in this proceeding monthly updates on
their progress towards implementation of wireline-to-wireless number
portability and hold informational meetings with interested parties within
one week of each monthly update filing;
ITA members agree to implement wireline-to-wireless number portability
consistent with North American Numbering Council ("NANC"
Recommendations, and to the extent that such Recommendations do not
specifically address certain routing, porting interval information
exchange, and other implementation issues, ITA agrees to actively work
with wireless carriers and other interested parties to establish porting
processes and procedures that ensure the timely and accurate completion
of all porting requests;
ITA members agree establish porting processes and procedures, as
explained in No.3 above, by August 30, 2004, or two months prior to
wireline-to-wireless porting implementation, whichever is earliest, and file
these processes and procedures in this proceeding; and
ITA members agree to implement wireline-to-wireless number portability
consistent with all applicable rules.
WESTERN WIRELESS HAS A DIRECT INTEREST IN ITA'S PETITION
AND WOULD BE IMP ACTED BY ANY COMMISSION'S ACTION.
Western Wireless has an interest in ITA member companies' implementation of
LNP because it specifically impacts its rights to port telephone numbers with wire line
carriers. Furthermore, Western Wireless sent a lawful bona fide request ("BFR") to CTC
Telecom, Inc. and Farmers Mutual Telephone Company to implement number portability
by the May 24, 2004 deadline, as required by the Federal Communications Commission
FCC") rules. Moreover, because rural consumers are increasingly choosing wireless
service for their telecommunications needs and may choose to port their wireline
numbers to Western Wireless upon implementation of number portability, Western
Wireless has an interest in this proceeding with respect to the implementation of number
portability by all ITA member companies.
II.THERE IS A VERY HIGH STANDARD TO BE MET FOR SUSPENSION
OF ITA MEMBER COMPANIES' LNP OBLIGATIONS.
Congress established a very high standard to be met for a local exchange carrier
LEC") to obtain a suspension of its LNP obligations.Section 251 (f)(2) of the
Communications Act of 1934, as amended ("Act"), permits state commissions to suspend
a carrier s LNP obligations only:
to the extent that, and for such duration as, the State commission
determines that such suspension or modification
(A) is necessary: (i) to avoid significant adverse impact on users
of telecommunications services generally; (ii) to avoid imposing a
requirement that is unduly economically burdensome; or (iii) to
avoid imposing a requirement that is technically infeasible; and
(B) is consistent with the public interest, convenience, and
necessity.
Congress intended exemption, suspenSIOn, or modification of the section 251
requirements to be the exception rather than the rule. . .. We believe that Congress did not
intend to insulate smaller or rural LECs from competition.
47 U.C. ~ 251(t)(2).
Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, First
Report & Order, 11 F.c.C.R. 15499, 16118 (1996) LNP First Report and Order
ITA Members Have Had Ample Opportunity To Prepare For And
Implement Their LNP Obligations.
ITA members, like all LECs, have known since 1996 that they would be required
to provide LNP. Section 251(b)(3) of the Act requires all LECs to provide LNP.3 In its
rules implementing the LNP requirements of the Act, the FCC recognized that the public
interest would be served by requiring carriers to implement LNP in all areas, but
conditioned the requirement to implement LNP in rural areas on a carrier receiving a
BFR from another carrier.Although Section 251(f) of the Act provides that rural
carriers may obtain a suspension of their LNP obligations, the FCC has concluded that a
suspension is only appropriate under unique and compelling circumstances:
We believe that Congress did not intend to insulate smaller or rural LECs
from competition.... Thus , we believe that, in order to justify continued
exemption once a bona fide request has been made, or to justify
suspension or modification of the Commission s section 251 requirements
a LEC must offer evidence that application of those requirements would
be likely to cause undue economic burdens beyond the economic burdens
typically associated with efficient competitive entry. State commissions
will need to decide on a case-by-case basis whether such a showing has
been made.
Because consumers increasingly view wireless service as a substitute for wireline
service, it is imperative that consumers are able to take their telephone numbers with
them if they switch to a wire line or wireless carrier. The FCC has recognized that "there
would be a greater likelihood that consumers would view their wireless phones as a
potential substitute for their wireline phones and thus the ability of consumers to port
their numbers was likely to become an increasingly important factor in consumer
47 U.C. ~ 251(b)(3).
47 C.R. ~ 52.26.
LNP First Report and Order at 16118.
choice."6 In fact
, "
an increasing number of wireless carriers offer service plans designed
to compete directly with wireline local telephone service."? Indeed, Western Wireless, as
a rural wireless service provider, competes directly with rural telephone companies, but
without LNP, a significant barrier will remain to full and vibrant competition in rural
areas between wireline and wireless carriers.
Clearly, granting IT A members a suspension of a critical component of local
competition
g.,
LNP, would undermine the national goal of fostering intermodal
competition and would have a direct and adverse impact on emerging competition in
rural Idaho. Consumers in rural areas stand to gain the most from LNP, but only if the
Commission requires LECs to meet their obligations necessary to open the local
telephone market to competition.Other state commissions have recognized that the
public interest is served by not allowing the LECs to avoid their legal obligations. For
example, the Ohio Commission held that grant of Section 251 (f)(2) LNP suspensions
should be the exception, rather than the rule:
We believe that Congress did not intend to insulate smaller or rural LECs
from competition and thereby prevent subscribers in those
communications from obtaining the benefits of competitive local exchange
service.
The Pennsylvania Commission has recognized that "rural residents have as much right to
competitive choices as their more numerous urban counterparts" and that as a result, rural
LEC suspension petitioners "must present competent evidence that such relief
Verizon Wireless s Petition for Partial Forbearance from the Commercial Mobile Radio Services
Number Portability Obligation Memorandum Opinion and Order, 17 FCC Red. 14972 (2002) Verizon
Wireless Forbearance Order
Id.
Western Reserve Petition Case Nos. 99-1542-TP-UNC and 00-430-TP-UNC, 2002 Ohio PUC
LEXIS at * 13 (Public Utilities Comm n of Ohio, May 2000), quoting LNP First Report and Order
FCC Red 15499, 16118 ~ 1262 (1996).
necessary under Section 251 (f)(2)."9 Several other state commissions have also rejected
rural LEC LNP suspension petitions.
IT A Has Not Demonstrated That LNP Is Technically
Infeasible.
The FCC recently ruled that there is "no persuasIve evidence in the
record" indicating that LEC-wireless porting even poses "technical difficulties.!! The
Iowa Commission, after conducting a hearing, determined it is "uncontested that it is
technically feasible for Iowa Telecom to provide LNP in the exchanges at issue in this
case.,,!2 Moreover, in other states, rural LECs have implemented the necessary network
and equipment changes necessary to provide LNP. Therefore, there is no basis for the
Commission to conclude that grant of ITA's Petition "is necessary to avoid imposing a
requirement that is technically infeasible.
ITA Has Not Demonstrated That Implementing LNP Would
Be Unduly Economically Burdensome.
Section 251(f)(2) permits the Commission to suspend aLEC's LNP
obligation if such action is "necessary to avoid imposing a requirement that is unduly
Petition of Rural and Small Incumbent Local Exchange Carriers for Commission Action Pursuant
to Section 251 (j)(2) and 253(b) of the Telecommunications Act of 1996, Docket Nos. P-00971177 and
00971188, 1997 Pa. PUC LEXIS 146 at *44 (Pennsylvania Public Utility Comm , July 10, 1997).
to See, e.g., Petition by the Alliance of North Carolina Independent Telephone Companies for
Limited Modification of the Requirement to Provide Number Portability, Order Dismissing Petition
Without Prejudice Docket No. P-I00, Sub 133r (North Carolina Utilities Comm , Oct. 7, 2003)(LNP
suspension petition dismissed for failure to meet burden ofproot); Iowa Telecommunications Services
Docket No. SPU-02-18 (SPU-02-19), 2003 Iowa PUC LEXIS 141 (Iowa Utilities Board, April 15
2003)(LNP suspension petition denied for failure to meet burden ofproot); In the matter of the application
of Waldron Telephone Company and Ogden Telephone Company for temporary suspension of wireline to
wireless number portability obligations pursuant to ~2 51 (j)(2) of the federal Telecommunications Act of
1996 as amended. Opinion and Order in Case Nos. U-13956 and U-13958). (Michigan Public Service
Commission, February 12 2004.11 In the Matter of Telephone Number Portability, CTIA Petitions for Declaratory Ruling on
Wireline-Wireless Porting Issues, CC Docket No. 95-116, FCC 03-284 at ~ 23 (reI. November 10 2003).
12 Iowa Telecommunications Services Docket No. SPU-02-18 (SPU-02-19), 2003 Iowa PUC LEXIS
141 at *14 (Iowa Utilities Board, April 15 , 2003).13 47 U.c. ~ 251(t)(2)(A)(iii).
economically burdensome."14 The Ohio Commission has held that the statutory phrase
unduly economically burdensome " means economic burdens "beyond the economic
burdens typically associated with efficient competitive entry."15 Without an evidentiary
hearing to analyze the facts indicating the likely costs ITA members would incur for
implementing LNP, there is no way to conclude that suspension of ITA member
companies ' LNP obligations "is necessary to avoid imposing a requirement that is unduly
economically burdensome."16
It is also important to note that the FCC has established a federal cost recovery
plan that enables LECs to recover their LNP implementation costs. FCC Rule 52.33(a)
provides:
Incumbent (LECs J may recover their carrier-specific costs
directly related to providing long-term number portability by
establishing in tariffs filed with the (FCC) a monthly number
portability charge, as specified in paragraph (a)(1), a number
portability query-service charge, as specified in paragraph (a)(2),
and a monthly number portability query/administration charge, as
specified in paragraph (a )(3).
Therefore, there is no basis to conclude that LNP implementation by the ITA members
would be "unduly economically burdensome.
ITA Has Not Demonstrated That LNP Would Impose
Significant Adverse Impact On Customers Generally.
Section 251(f)(2) permits the Commission to suspend a LEe's LNP
obligations if such action is "necessary to avoid imposing a significant impact on users of
telecommunications services generally." 18 Although LNP could result in a LNP
47 u.S.c. ~ 251(t)(2)(A)(ii).
Western Reserve Petition at 13.
47 u.S.C. ~ 251(t)(2)(A)(ii)(emphasis added).
47 U.C. ~ 251(t)(2)(A)(ii)(emphasis added).
47 U.C. ~ 251(t)(2)(A)(i).
surcharge imposed on customers, consumers will also receIve numerous offsetting
benefits as the FCC has recognized:
We recognize consumers' sensitivity to end-user charges. . . .
We anticipate that the benefits of number portability, namely the
increased choice and lower prices that result from the
competition that number portability helps make possible, will far
outweigh the initial costS.
ITA has presented no evidence that LNP will have "significant adverse impact on users
of telecommunications services generally. "20
The Public Interest Would Not Be Served By Unconditionally
Suspending IT A Member Companies' LNP Obligations.
Section 251 (f)(2) of the Act requires the Commission to determine that grant of a
carrier s LNP obligations would be "consistent with the public interest, convenience and
necessity."21 The provision of LNP by LECs is a critical component of a competitive
local telephone market. The FCC has observed that the inability of customers to retain
their telephone numbers when changing local service providers hampers the development
of local competition:
Section 251 (b )(2) removes a significant barrier to competition by
ensuring that consumers can change carriers without forfeiting
their existing telephone numbers.
The implementation of LNP will also conserve scarce number resources because it is a
precursor to a rural LEe's participation in thousands-block number pooling. If ITA
members are relieved of their LNP obligations, then they also will be relieved of their
Third LNP Order 13 FCC Red 11701 , 11707 ~ 10 (1998).
47 U.c. ~ 251(t)(2)(A)(i)(emphasis added).
See 47 U.c. ~ 251 (t)(2)(B).
Third LNP Order 13 FCC Red 11701 , 11702-04 ~~ 3-4 (1998).
responsibility to participate in number pooling, resulting in the underutilization of
thousands of telephone numbers.
III.ITA MEMBERS, HOWEVER, HAVE PRESENTED A REASONABLE
PLAN FOR IMPLEMENATION OF LNP, WHICH THE COMMISSION
SHOULD CONDITIONALLY GRANT
Notwithstanding the aforementioned concerns raised by Western Wireless, it
would appear that IT A members are taking reasonable steps toward compliance, albeit a
bit late. Rather than just asking the Commission to grant a temporary suspension without
any plan for compliance with the LNP obligations established by the Act and FCC rules
ITA has asked for a 6-month suspension in order to implement a LNP solution based
upon using shared infrastructure.Western Wireless commends ITA members for
considering an innovative approach to cost-effectively implementing LNP. As a rural
wireless carrier, Western Wireless, likewise, has shouldered the burden of implementing
LNP over a relatively small customer base. Nonetheless, Congress, the FCC , and state
commissions have recognized that LNP is a critical service for consumers and must be
implemented.
Western Wireless therefore conditionally supports granting ITA member
companies a suspension of their LNP obligations provided that:
the length of any temporary suspension is the earlier of 180 days from a
final order in this proceeding or November 24, 2004;
ITA members are required to file in this proceeding monthly updates on
their progress towards implementation of wireline-to-wireless number
portability and hold informational meetings with interested parties within
one week of each monthly update filing;
ITA members agree to implement wireline-to-wireless number portability
consistent with North American Numbering Council ("NANC"
Recommendations, and to the extent that such Recommendations do not
specifically address certain routing, porting interval information
exchange, and other implementation issues, ITA agrees to actively work
with wireless carriers and other interested parties to establish porting
processes and procedures that ensure the timely and accurate completion
of all porting requests;
IT A members agree establish porting processes and procedures, as
explained in No.3 above, by August 30, 2004, or two months prior to
wireline-to-wireless porting implementation, whichever is earliest, and file
these processes and procedures in this proceeding; and
ITA members agree to implement wireline-to-wireless number portability
consistent with all applicable rules.
IV.CONCLUSION
For the reasons explained herein, Western Wireless opposes ITA's Petition, but
supports a conditionally grant of temporary relief.
Respectfully submitted
WESTERN WIRELESS CO RPO RA TI
By L1AtrtS ~-F
~./
l\l
Gene DeJordy, Esq.
Vice President of Regulatory Affairs
Western Wireless Corporation
3650 13151 Ave., SE
Bellevue, Washington 98006
Phone: [phone]
Fax: [phone]
E-mail: gene.deiordy~wwireless.com
CERTIFICATE OF SERVICE
I hereby certify that on the 12th day of March, 2004 a true and correct copy of the foregoing document Western
Wireless Conditional Opposition to ITA'Petition for Temporary Suspension was forwarded, with all required charges prepaid
by the methodes) indicated to the following:
Conley Ward, Esq,
GNENS PURSLEY LLP
277 North 6th Street, Suite 200
O, Box 2720
Boise, Idaho 83702-7720
Hand Delivered
Federal Express
S, Mail
Telecopy
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