20180905final_order_no_34130.pdf

Office of the Secretary
Service Date
September 5,2018
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION )
OF INTERMOUNTAIN INFRASTRUCTURE )CASE NO.IGL-T-18-01
GROUP,LLC TO PROVIDE FACILITIES-)
BASED NON-BASIC )TELECOMMUNICATIONS SERVICE )ORDER NO.34130
THROUGHOUTIDAHO )
On April 19,2018,Intermountain Infrastructure Group,LLC ("IIG")applied to the
Commission,per Procedural Order No.32277 and IDAPA 31.01.01.114,for registration as a
facilities-based provider of non-basic local telecommunications services in Idaho.The
Commission issued a Notice of Application and Notice of Modified Procedure with a July 30,
2018,comment deadline.See Order No.34078.Commission Staff filed the only written
comments.As detailed below,we now deny IIG's Application.
THE APPLICATION
IIG is a Delaware limited liability company with its principal place of business in
Burlingame,California.Application at 1.Idaho's Secretary of State authorized IIG to transact
business in Idaho as of March 26,2018.Id.;Exhibit A.IIG seeks to register as a facilities-based
provider of non-basic local telecommunications services in Idaho for purposes of "provid[ing]
dedicated private line circuits and dark fiber that will require access to the poles and conduit of
incumbent local exchange carriers"("ILECs").Application at 2.
In its Application,IIG agreed to comply with rules applicable to competitive providers
of non-basic local telecommunications services in Idaho.Id.IIG further agreed that it would be
subject to numbering conservation measures,includingmandatory one thousand block pooling,
donation back to the pool of unused or underutilized thousand number blocks,and submission of
utilization/forecast reports at the one thousand block level for each rate center within its service
territory.Id.at 3.
STAFF COMMENTS
Staff expressed concern that "[i]ncreasinglycertain entities are appearing before the
Commission in order to register as providers of non-basic local exchange services,or wholesale
telecommunications services,under Commission Order No.32277,by attempting to fit within the
ORDER NO.34130 1
seemingly broad definition of 'telecommunications services'at Idaho Code §61-603(14)."Staff
Comments at 2.Staff argued this type of registration is improper.
Staff explained that telephone companies are not traditional public utilities or treated
as such by the Commission.For example,they have been rate de-regulated for over a decade in
Idaho,and CPCNs are not required for telephone corporations offering non-basic local exchange
services.Id.citing Order No.32059 at 2-3.Further,federal law precludes the Commission from
regulating information services like VoIP,cable,and wireless.Id.
Staff next explained that the Commission lacks jurisdiction over IIG,including the
ability to register or regulate it,because the Commission only has jurisdiction over "telephone
corporations"and IIG is not a "telephone corporation"under Idaho's Telecommunications Act of
1988.The Act defines "Telephone Corporation"as "every corporation or person ...providing
telecommunications services for compensation within this state."Idaho Code §62-603(14)
(emphasis added).The Act defines "telecommunications services,"in turn,as "the transmission of
two-way interactive switched signs,signals,writing,images,sounds,messages,data,or other
information of any nature by wire,radio,lightwaves,or other electromagnetic means ...which
originate and terminate in this state,and are offered to or for the public ...for compensation."
Idaho Code §62-603(13)(emphasis added).
While the Act does not define what "switched"means,Staff explained that,in standard
telecommunications parlance,companies only provide "switched"information over the public
switched telephone network ("PSTN"),which is an integrated network of switches that open
dedicated channels to connect party A to party B wherever located.See Staff Comments at 3.
Staff also noted that while certain technologies,such as VoIP-which again,the Commission has
no authority over-"utilize forms of packet switching (e.g.,data transport to a customer over
leased T-1 lines from the [ILEC]or its own fiber network of packetized data and voice)[they]may
not utilize a 'switch'in the traditional telephony terms."Id.Staff believes that the Commission
lacks jurisdiction over telecommunication or information services that are not transmitted via a
switch,i.e.,that are not transmitted via the PSTN.Id.
While Staff noted the Commission lacks jurisdiction to regulate telecommunications
providers that lack switched services,Staff recognized the Commission previouslyhas allowed
those providers to "register"with the Commission to make it easier for them to access federal
benefits.Staff explained that the Commission created its "registration process"in the 2008 Time
ORDER NO.34130 2
Warner case,Case No.TIM-T-08-01.In 2008,Time Warner Cable Information Services applied
for a CPCN.The Commission denied Time Warner's application because Time Warner was
exempt from Title 61 regulation under Idaho Code §62-604.See Order No.32059 at 2-3.In a
Petition for Reconsideration,Time Warner stated that it needed a CPCN because,"in its
experience,[ILECs]will refuse to interconnect with an entity that does not hold a CPCN."Id.
Time Warner also claimed the lack of a Title 62 CPCN would prohibit it from obtaining telephone
numbers from the North American Number Plan Administrator ("NANPA").See id.at 13-14.
The Commission denied Time Warner's Petition and observed that a telecommunications carrier
does not need a Title 62 CPCN to obtain an interconnection agreement under federal law.Id.at
13.The Commission also found it lacked regulatory authorityover paging or wireless carriers,
which obtain numbers from NANPA based on their certification under the federal
Telecommunications Act,regardless of whether they have an Idaho Title 62 CPCN.Id.at 13-14.
After denying Time Warner's Petition,the Commission opened a generic docket "to
investigate whether some sort of certification process [would be]appropriate for Title 62
telecommunications providers that do not provide basic local exchange service."Staff Comments
at 4 citing Case No.GNR-T-11-01;Order No.32277 at 2.In that docket,Qwest,AT&T,Time
Warner,and Staff commented that the Commission's recognition of "wholesale
telecommunications providers [would]enhance or enable the companies'access to local markets
and rights and remedies set forth in ...the federal Telecommunications Act,"such as easing access
to interconnection agreements,and enabling a company to acquire numbering resources from
NANPA.Id.The Commission ultimatelyfound it "appropriate to use the registration and review
process described in Rule l14 [IDAPA 31.01.01.114]to identify telecommunications providers
that do not provide local exchange service,but nonetheless request Commission recognition to
assist their entry into the Idaho markets."Id.at 4.The Commission thus established a process for
a telecommunications company to "[register]as a wholesale provider of telecommunications
services in Idaho."Id.
Staff noted the Commission never intended its state registration process to provide or
promote fiber optic network builders'access to public rights-of-way.Rather,the Commission
intended its state registration process to help wholesale providers and non-basic local exchange
service providers to ease access to interconnection agreements and numbering resources.Id.at 4.
Staff further believes that the providers'purported historical difficulty with interconnection and
ORDER NO.34130 3
numbering resources has been substantially alleviated because no state registration is required for
interconnection.Likewise,providers may directlyapply to NANPA for number resources without
any requirement that a state regulate,register,or recognize them.'Staff thus believes the
Commission's state registration process is unnecessary.Id.at 5.
COMMISSION FINDINGS AND DECISION
The Commission has reviewed and considered the record,includingIIG's Application
and attached exhibits,and Staff's comments.The Commission now denies IIG's Application for
registration as a facilities-based provider of non-basic local telecommunications services.
Idaho's Telecommunications Act of 1988 provides the Commission with jurisdiction
over "telephone corporations;"that is,over a company that provides "telecommunications
services"by transmitting "switched"information through PSTN assets.But the Commission has
no jurisdiction to register or certify an entity,like IIG,that does not provide switched-based
telecommunications services in Idaho.More specifically,we find we have no authority to regulate
or register a fiber optic company like IIG that provides dedicated private line circuits and dark
fiber and seeks to register in an effort to avail itself of ILEC poles and conduits.We note IIG does
not propose to provide switched telecommunications services.Nor does it claim to need state
registration to ease its access to switched network interconnection or numbering resources.Rather,
IIG seeks a registration to help it negotiate "structure access"agreements with ILECs.We never
intended the state registration to be used for such a purpose,and decline to extend it to do so now.
Simply put,we have no jurisdiction or authority upon which to grant IIG's request.
We do note this Order does not prevent IIG or any other entity from attempting to
access ILEC structures or public rights of way throughanother forum or procedure.This Order
merely clarifies that the Commission lacks jurisdiction over such activities and service offerings.
ORDER
IT IS HEREBY ORDERED that IIG's Application is denied.
THIS IS A FINAL ORDER.Any person interested in this Order may petition for
reconsideration within twenty-one (21)days of the service date of this Order.Within seven (7)
'See FCC 15-70,Numbering Policies for Modern Communications,WC Docket No.l 3-97,IP-EnabledServices,
WC Docket No.04-36,Telephone Number Requirements for IP-EnabledServices Providers,WC Docket No.07-
243,Telephone Number Portability,CC Docket No.95-116,Developinga UnifiedIntercarrier Compensation
Regime,CC Docket No.01-92,Connect America Fund,WC Docket No.10-90,Numbering Resource Optimization,
CC Docket No.99-200.
ORDER NO.34130 4
days after any person has petitioned for reconsideration,any other person may cross-petition for
reconsideration.See Idaho Code §61-626.
DONE by Order of the Idaho Public Utilities Cornmission at Boise,Idaho this
day of September 2018.
PAUL KJELLAÑISEW,PRESIDENT
KRIÈINE P'ER MI SIONER
ERIC ANDERSON,COMMISSIONER
Diane M.Hanian
Commission Secretary
IGLTl801 FINAL se
ORDER NO.34130 5