20180730Comments.pdf

SEAN COSTELLO
DEPUTY ATTORNEY GENERAL
IDAHO PUBLIC UTILITIES COMMISSION
PO BOX 83720
BOISE, IDAHO 83]20.0074
[phone]
IDAHO BAR NO. 8743
RECEIVED
i$1fi J:lL 30 Pil 12:20
Street Address for Express Mail:
472 W. WASHINGTON
BOISE, IDAHO 83702-5918
Attorney for the Commission Staff
BBFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION OF
INTERMOUNTAIN INFRASTRUCTURE
GROUP, LLC TO PROVIDE FACILITIES-
BASED NON.BASIC TELECOMMUNICATIONS
SERVICE THROUGHOUT IDAHO
CASE NO. IGL-T.I8.01
COMMENTS OF THE
COMMISSION STAFF
STAFF OF the Idaho Public Utilities Commission, by and through its Attorney of
record, Sean Costello, Deputy Attorney General, submits the following comments.
THE APPLICATION
On April 19,2078, Intermountain Infrastructure Group, LLC ("IIG" or "Company") filed
an Application with 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
within the State of Idaho. Application at l. IIG is a corporation organized in the State of
Delaware and lists its principal place of business as Burlingame, California. Id. Idaho's
Secretary of State certified that IIG was authorized to transact business in Idaho as of March 26,
2018. Id;Exhibit A. The Company lists Northwest Registered Agent LLC,784 S. Clearwater
Loop, Suite B, Post Falls, Idaho 83854, as its registered agent in ldaho. Id. at2.
IIG states that it "agrees to comply with rules applicable to competitive providers of
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1STAFF COMMENTS JULY 30, 2018
non-basic local telecommunications services" in Idaho . Id. IIG agrees "it will be subject to
numbering conservation measures, including mandatory one thousand block pooling, donation
back to the pool of unused or underutilized thousand number blocks, and submission of
applicable utilization forecast reports at the one thousand block level for each rate center within
its service territory." Id. at 3.
BACKGROUND AND JURISDICTION
Staff believes that it is critical, at this juncture, to provide the Commission some history
and analysis related to the procedural process companies purporting to provide
"telecommunications services" in Idaho bring cases before the Commission. Increasingly certain
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 seemingly broad definition of "telecommunications
services" at ldaho Code $ 61-603(14). Staff believes it is time to address this process and quell
any unnecessary confusion or additional registration issues.
As the Commission is aware, it has limited, vestigial regulatory authority over telephone
corporations and telecommunications services. Title 62 telephone companies, from a public
utility perspective, have been completely rate de-regulated for well over a decade in Idaho, and,
as such, are not treated as public utilities, per se, by the Commission.l Further, between the time
competition entered into the wireline telephone market and today, the telecommunications
landscape has obviously, and drastically, changed. However, under federal law, the Commission
is prohibited from regulating certain of these "new" information services, such as, among others
VoIP, cable, and wireless.
T n r TeLecoutt u NrcATroNS Acr O r I 9 I I
IIG's application is an attempt to fit within the definition of "telephone corporation"
providing "telecommunications services" under Idaho's Telecommunications Act of 1996. A
"telephone corporation" "means every corporation or person . . . providing telecommunications
services for compensation within this state." See ldaho Code $ 62-603(14). Therefore, in order
to be a telephone corporation in Idaho under the Telecommunications Act, "telecommunications
services" must be provided. Telecommunications services are defined as "the transmission of
I As a result, the Commission has long held that a Certificate of Public Convenience and Necessity (CPCN) is not
required for telephone corporations offering non-basic local exchange services. See Order No. 32059 at2-3; and
Case No. TIM-T-08-01.
2STAFF COMMENTS JULY 30,2OI8
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).
The operative word within the definition of "telecommunications services" is "switched."
In telecommunications parlance, a switch is the need to use the assets of 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. While technology such as VoIP
utilizes a form of packet switching (e.g., data transport to a customer over leased T-l lines from
the incumbent local exchange carrier ("ILEC") or its own fiber network of packetized data and
voice) it may not utilize a "switch" in the traditional telephony terms. Hence, the Commission's
lack ofjurisdiction over information services not utilizing the PSTN.
Therefore, on a fundamental level, IIG does not fit within the definition of
"telecommunications services" because it will not be providing the transmission of two-way
interactive switched based communications to the Idaho public for compensation. Regardless of
this fact, the Commission has provided another route to recognize, or register certain
telecommunications providers. This is the route IIG seeks to avail itself of, ostensibly for the
purpose of gaining favorable access to ILEC poles and conduit of located in public rights-of-
way.
Tat Trur ll/anNen Cesr
In 2008, Time Warner Cable Information Services filed an application for a CPCN under
Idaho Code $$ 6l-526 through 6l-528. See Case No. TIM-T-08-01. The Commission denied
Time Warner's application, noting that Time Warner is exempt from Title 6l under ldaho Code
S 62-604. See Order No. 32059 at2-3. In seeking reconsideration, Time Wamer stated that it
needed a CPCN because, o'in its experience, incumbent flocal exchange carriers] will refuse to
interconnect with an entity that does not hold a CPCN." Id. Time Warner also argued that the
lack of a Title 62 CPCN would prohibit it from obtaining telephone numbers from the North
American Number Plan Administrator (I{ANPA).2 See Order No. 32059 at 13-14. In denying
2 NANPA is an independent non-governmental entity selected by the Federal Communications Commission (FCC)
to administer the North American Numbering Plan and ensure "the efficient and effective administration and
assignment of number resources." 47 C.F.R. $ 52.13.
JSTAFF COMMENTS JULY 30,2018
reconsideration, the Commission observed that a Title 62 CPCN is not necessary for a
telecommunications carrier to obtain an interconnection agreement under federal law. Id. at 13.
Also, the Commission found that it lacks any regulatory authority over 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.
Ruts 114 PnocESS To "RECoGNrzE" WHoLESALE TELECqMMUNICATToNS Pnowoons
Following the Time Warner case, the Commission opened a 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." See Order No.
32277 at2. lnthat matter, the Commission received comments from Qwest, AT&T, Time
Wamer, and Staff. All commenting parties stated that recognition by the Commission 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. at7.
The Commission found it "appropriate to use the registration and review process
described in Rule 1 14 [IDAPA 31.01.01.1 l4] 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 8. Thus, the Commission established a process by
which a telecommunications company could apply to "be recognized by the Commission as
having successfully registered as a wholesale provider of telecommunications services in Idaho."
Id. The critical components of this alternative registration process allowed by the Commission
was, again, meant to ease access to interconnection agreements and/or to obtain numbering
resources from NANPA, not to provide or promote access to public rights-of-way.
However, the main purposes of Order No.32277 have now been alleviated. The
Commission has no actual or apparent authority to regulate wholesale providers or providers of
non-basic local exchange services and, under the federal Telecommunications Act, wholesale
providers can seek registration and, therefore, ease interconnection through that avenue.
Numbering resources for all VoIP providers can be applied for directly through NANPA, with no
4STAFF COMMENTS JULY 30,2OI8
requirement that regulation, registration or recognition occur at the state level.3 In other words,
the concerns that Time Warner had in 2008 have now been alleviated to the point where the
Commission no longer needs to accommodate providers of non-basic local exchange services or
wholesale services through the Order No.32277 "registration" process.
STAFF ANALYSIS AND RECOMMENDATION
Staff has reviewed IIG's Application for compliance with applicable legal requirements
to be registered as a facilities-based provider of non-basic local telecommunications services
within the State of Idaho. For the reasons elaborated below, Staff recommends that the
Commission not register IIG as a facilities-based provider of non-basic local telecommunications
services in Idaho because it is not providing telecommunications services within the meaning
and intent of Idaho's Telecommunications Act of 1988, as amended, and the Order No.32277
"registration" process is no longer a beneficial or advisable avenue for telecommunications
providers attempting to ease interconnection or obtain numbering resources.
Generally, IIG states that it "intends to provide dedicated private line circuits and dark
fiber that will require access to the poles and conduit of [ILECs] ." Id. at 2. However, dedicated
private line circuits are not connected to the public telephone system and dark fiber networks are
not telecommunications services, per se, where IIG is the provider and installer of infrastructure
and not light services for fiber (even then, it would not f,rt within the definition of
"telecommunications service" and would not be subject to the Commission's jurisdiction).
More specifically, based on descriptions on its public website, IIG states that it provides the
following services:
l. Network optimization. Through connecting locations with bandwidths and/or
optimizing dark fiber, connectivity to major internet and content peering sites using
existing or newly constructed fiber routes;
2. Construction Management. IIG delivers a wide range of construction projects related
to the building of new networks, including "turnkey provider" services such as
engineering and design, permitting, program and project management, network and
civil construction, change management and as-built documentation;
3FCC l5-70, NumberingPoliciesforModernCommunications,WC DocketNo. 13-97, IP-EnabledServices,WC
Docket No. 04-36, Telephone Number Requirements for IP-Enabled Services Providers, WC Docket No. 07-243,
Telephone Number Portability, CC Docket No. 95-l 16, Developing a Unified Intercarrier Compensation Regime,
CC Docket No. 01-92, Connect America Fund, WC Docket No. I 0-90, Numbering Resource Optimization, CC
Docket No. 99-200.
5STAFF COMMENTS JULY 30,2018
3. Optical Equipment Planning and Install. IIG offers services related to exploration and
selection of next generation transport technologies, including "development of network
architecture topology, demand growth forecasting, support requirements and phased
migration strategies";
4. Fiber Optic Assurance, Test and Turnup. IIG offers to assure existing fiber optic
inventory, newly acquired or constructed routes to prevent network faults and support
new implementation with splicing, termination and testing with reporting as well as
maintenance and fault restoration; and
5. Route Maintenance. IIG maintains that it will ensure public and private organizations
critical telecommunications infrastructure has qualifi ed professionals prepared to
provide optimal emergency response and professional maintenance.4
Based on these descriptions, in a general sense, IIG builds, supports, and maintains private
line and dark fiber optic networks. However, based on its Application, and in informal
discussions with Staff, it does not provide these, arguably private functions, on a switched basis.
While IIG may argue, though it did not provide any evidence or information in its Application,
that it provides data packet switching over fiber network, this service is more akin to
"information services"-such as VolP and cable-and, consequently, not within the
Commission' s j urisdiction.
Nor does IIG argue that it needs to avail itself of the Order No.32277 "registration"
process to ease interconnection or obtain numbering resources. In fact, to the contrary, IIG states
that it wlll not seek interconnection with ILECs, rather it will seek "structure access" agreements,
in order to gain access to ILEC poles and conduits in public rights-of-way. As a builder and
maintainer of dark fiber optic networks, nor can Staff foresee any need for IIG to obtain
numbering resources from NANPA.
At base, the intent of Idaho's Telecommunications Act of 1988 and Commission Order No.
32277, coupled with the history of wireline telephone utility regulation and telecommunications
rapid technological advancement, does not lend toward Commission regulation or recognition of
a private line or dark fiber network builder. The Company is simply not planning to offer
switched telecommunications services to the public in Idaho for compensation and therefore
should not be registered as a non-basic telecommunications (or wholesale) service provider.
a See, e. g., https:/iintermountainig.com/sen,ices,/ (last accessed July 20, 20 1 8).
6STAFF COMMENTS JULY 30,2018
Respectfully submitted this 7oa day of July 2018.
Sean Costello
Deputy Attorney General
Technical Staff: Carolee Hall
7STAFF COMMENTS JULY 30,2OI8
N-J:t*
CERTIFICATE OF SERVICE
I HEREBY CERTIFY THAT I HAVE THIS 3OTH DAY OF JULY 2018,
SERVED THE FOREGOING COMMENTS OF THE COMMISSION STAFF, IN
CASE NO. IGL.T-18-01, BY MAILING A COPY THEREOF, POSTAGE PREPAID, TO
THE FOLLOWING:
SHARON THOMAS CONSULTANT
INTESERRA CONSULTING
I5I SOUTHHALL LANE SUITE 450
MAITLAND FL 32751
E-Mail: sthonras;0i nteserra.cont
SECRETAR
CERTIFICATE OF SERVICE