20020410Supplemental Comments.pdf

LISA D. NORDSTROM
DEPUTY ATTORNEY GENERAL
IDAHO PUBLIC UTILITIES COMMISSION
PO BOX 83720
BOISE, IDAHO 83720-0074
[phone]
IDAHO BAR NO. 5733

Street Address for Express Mail:
472 W. WASHINGTON
BOISE, IDAHO 83702-5983

Attorney for the Commission Staff

BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION

IN THE MATTER OF THE APPLICATION OF
LEVEL 3 COMMUNICATIONS, LLC TO
AMEND ITS CERTIFICATE OF PUBLIC
CONVENIENCE AND NECESSITY TO
PROVIDE LOCAL EXCHANGE AND
INTEREXCHANGE TELECOMMUNICATIONS
SERVICES STATEWIDE.

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CASE NO. LEV-T-02-1

SUPPLEMENTAL COMMENTS
OF THE COMMISSION STAFF

COMES NOW the Staff of the Idaho Public Utilities Commission, by and through its
Attorney of record, Lisa D. Nordstrom, Deputy Attorney General, and in response to the
comments of Farmers Mutual Telephone Company filed on March 28, 2002, submits the
following supplemental comments.

BACKGROUND
On February 8, 2002, Level 3 Communications, LLC (“Level 3” or “Company”) filed an
Application to amend its current Certificate of Public Convenience and Necessity. In Case No.
GNR-T-98-13, the Commission granted Level 3 authority to provide facilities-based local
exchange and interexchange services in the Qwest and Verizon service territories. Order No.
27855. Level 3 now seeks to expand its authority to provide such services statewide.

STAFF COMMENTS 1 APRIL 10, 2002
Level 3 states that it intends initially to expand into the service area of Farmers Mutual
Telephone Company to offer service to, among other customers, internet service providers who
currently do not have points of presence in many of Idaho’s exchange areas. Level 3’s
Application further states that it intends to deploy an independent network by either building its
own facilities or leasing the facilities of other carriers.

DISCUSSION
Staff believes that the process of certification or, in this case, expanding a company’s
certification, is a method of determining that a company has the necessary qualifications to
provide service while still fostering competition in the local telecommunications market.
Certification is a separate function from interconnection. Farmers’ comments state that it does
not object to the expansion of Level 3’s certificate under certain conditions: first, that Farmers’
Section 251(c) exemption is not terminated as a result and second, that Farmers’ right to seek a
modification of the obligations imposed by Section 251(b) or (c) is not waived. (Farmers’
comments, pg. 3)
Farmers applied for an exemption of Section 251(c) obligations pursuant to Idaho Code
62-615(2), which the Commission approved in Order No. 27255. Pursuant to Order No. 27255,
Farmers’ exemption terminated on January 1, 2001. As to Farmers’ second concern, Staff does
not believe approval of Level 3’s Application can be construed as a waiver by Farmers of its
right to seek a modification of the obligations imposed by Section 251(b) or (c).
Farmers also points out that, under Section 253(f) of the 1996 Telecom Act, state
Commissions “can require a competitive carrier seeking entry into a rural telephone company’s
service territory to meet an eligible telecommunications carrier’s obligation to offer, and market,
universal services throughout the rural company’s territory before being permitted to provide
such services.” Farmers suggests that failure to require this of Level 3 would be unfair
competition and not in the public interest.
Section 253(f) allows but does not require state commissions to obligate a competitive
carrier to meet the obligations of an eligible telecommunications carrier, and Staff does not
believe the Commission should require this of Level 3. Staff believes the Commission should
approve Level 3’s Application to expand its Certificate. Any decisions regarding Farmers’
Section 251 obligations are best made when there is a bona fide request for interconnection.

STAFF COMMENTS 2 APRIL 10, 2002

STAFF COMMENTS 3 APRIL 10, 2002
Level 3 does not seek to interconnect with those companies that hold an exemption under
Section 251(f) of the Act at this time.
As to the grant of a certificate for the entire state, Staff points out that other competing
carriers currently have certificates to serve the entire state and could serve customers in Farmers’
territory today. Examples include Comm South Companies, Inc. (GNR-T-99-12 Order No.
28243), Essex Communications (GNR-T-00-26 Certificate No. 387), and Pac-West Telecomm,
Inc. (GNR-T-99-21 Certificate No. 373).

STAFF RECOMMENDATION
Based on Staff's review of the Application and comments filed in this case, Staff
recommends approval of Level 3’s Application for an amendment to its existing Certificate of
Public Convenience and Necessity to allow the Company to provide telecommunications
services statewide. Staff also recommends that the Commission not address whether Farmers
has an applicable rural exemption until such time as Farmers’ receives a bona fide request for
interconnection.
Staff believes, because there are no factual issues to decide and adequate comments
already appear in the record, that this matter does not require a hearing and that no oral
arguments are necessary.

Respectively submitted this day of April, 2002.

___________________________________
Lisa D. Nordstrom
Deputy Attorney General

Technical Staff: Doug Cooley

LN:DC:i:umisc/comments/levt02.1supplemental.lndc