20090407Comments.pdf

NEIL PRICE
DEPUTY ATTORNEY GENERAL
IDAHO PUBLIC UTILITIES COMMISSION
PO BOX 83720
BOISE, IDAHO 83720-0074
[phone]
IDAHO BAR NO. 6864
R 1-1\ '.: ",. ~4..f..",.' -!
20C9 APR - 7 A~H I :l; 2
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 )
MOMENTUM TELECOM, INC. FOR A )
CERTIFICATE OF PUBLIC CONVENIENCE )
AND NECESSITY TO PROVIDE LOCAL )EXCHANGE AND RESOLD )
TELECOMMUNICATIONS SERVICES. )
CASE NO. MNT-T-08-2
COMMENTS OF THE
COMMISSION STAFF
The Staff of the Idaho Public Utilities Commission, by and through it Attorney of
Record, Neil Price, Deputy Attorney General, in response to the Notice of Application and
Notice of Modified Procedure, issued on March 17,2009, Order No. 30749, submits the
following comments.
BACKGROUND
On August 4, 2008, Momentum Telecom, Inc. ("Momentum") fied an Application for a
Certificate of Public Convenience and Necessity pursuant to Idaho Code §§ 61-526 through 528,
IDAPA 31.01.01.111 and Commission Order No. 26665 to provide facilities-based local
exchange and resold interexchange telecommunications services within the State of Idaho. On
December 30, 2008, Momentum fied copies of its Local Exchange Telecommunications Tarff,
revised in accordance with Staffs recommendations to enhance the Company's intent to offer
local service in addition to its Voice over Internet Protocol (VoIP) services.
STAFF COMMENTS 1 APRIL 7, 2009
Momentum resubmitted its additional information and emphasized that it wil offer
facilties-based local exchange and resold interexchange services to Idaho consumers as well as
some wholesale services to other providers.
Momentum proposes to offer services throughout Idaho in geographic areas curently
served by incumbent local exchange cariers ("ILECs") Qwest Corporation and Verizon
Northwest Inc.
Momentum has not yet negotiated an interconnection agreement with an ILEC in Idaho.
Momentu states that it wil use its own soft switch to provide its facilties-based
services.
STAFF ANALYSIS
While Momentum has filed an Application for a CPCN to offer local exchange services,
Momentum has stated that it wil provide wholesale switching and interconnection VoIP services
to cable providers and similarly situated wholesale customers through the use of its own soft
switches and media gateways. Momentum's interconnected VoIP offering, while not considered
traditional circuit switched basic local exchange service, requires that Momentu be able to
obtain telephone numbers from the Number Pool Administrator and requires Momentum's
interconnection with the appropriate local exchange providers. Current industry numbering
standards, along with Federal Communications Commission (FCC) rules require that a provider
requesting its initial block of telephone numbers in a particular state provide evidence to the
Number Pool Administrator that the provider has either: (1) a license or authority issued by the
FCC; or (2) that it holds a CPCN issued by the appropriate state regulatory body, such as a
public utilities commission.
As of the date of these comments, the FCC has not made a determination of the
regulatory status of interconnected VoIP services. Therefore, it remains unclear whether fixed-
location (non-nomadic) interconnected VoIP telecommunications offerings currently are
properly classified as telecommunications services or information services under the definitions
contained in the Telecommunications Act of 1934, as amended by the Telecommunications Act
. of 1996 (Telecommunications Act). If the FCC were to make a determination that
interconnected VoIP offerings, such as those proposed by Momentum in this Application, are
information services; or, if the FCC were to preempt state regulation of all VoIP services, no
regulation of such services could lawflly be undertaken or continued by this Commission.
STAFF COMMENTS 2 APRIL 7, 2009
However, denying the Application for a CPCN has the practical effect of denying
Momentum entry into the Idaho telecommunications market. Without numbering resources,
Momentum canot provide its interconnected fixed VoIP service to Idaho customers. Staff
believes that approval of this Application would be consistent with the Commission's obligation,
under state and federal statutes, to promote competition for telecommunications services,
including basic local exchange service. Staff believes that, because interconnected fixed VoIP
service is the functional equivalent of circuit switched local exchange services, granting this
Application for a CPCN would encourage competition within Idaho. It would also afford
Momentum the same numbering resources that are curently used by the Idaho ILECs without
question or restriction of the services they are offering.
Momentum has fied for Certificates in a number of states. In Colorado, the Company
was granted a CPCN to provide local exchange telecommunications services as well as a Letter
of Registration (LOR) to provide emerging competitive telecommunications services throughout
the state of Colorado. See Docket No. 08A-126T. In Iowa, Momentum was granted a similar
certification.
With the initial filing, Staff was concerned about the approaching 208 area code exhaust.
To address this concern Momentum filed an addendum to its Application wherein it stated that
"as par of its Application it wil comply with all federal and state guidelines that monitor and
regulate the Idaho area code. Specifically, Momentum will comply with Commission Order No.
30425 - Mandatory Pooling." Momentum also explicitly agreed that it will comply with all
Commission Rules of Procedures and Idaho Code.
In the event that the FCC makes a determination that VoIP services are information
services or such VoIP services are not subject to state regulation, this CPCN to provide local
exchange telecommunications circuit switched local exchange service will stil be required by
Momentum.
STAFF RECOMMENDATION
1. Staff recommends that Momentum be granted a CPCN subject to the following
conditions:
a. The granting of this Certificate will be conditioned upon the Company complying
with the Number Pool Administrator and Idaho Commission Order No. 30425,
which requires NRUF and Utilzation reporting.
STAFF COMMENTS 3 APRIL 7, 2009
b. As a provider of intrastate regulated local exchange services and in accordance
with the Commission's Rules of Procedure, Momentum wil be required to report
and contribute, as appropriate, to the Idaho Universal Service Fund, Idaho
Telecommunications Relay System, ITSAP and any requisite annual reporting that
may be deemed appropriate in the future for competitive telecommunication
providers.
c. Upon issuance of the Certificate, Momentu shall fie a completed and final price
list with all it rates, terms and conditions to have on fie with the Commission.
Respectfully submitted this :¡ ~ day of April 2009...
~.
~il Price
Deputy Attorney General
Technical Staff: Carolee Hall
i: umisc:commentsmntt8.2npch.doc
STAFF COMMENTS 4 APRIL 7, 2009
CERTIFICATE OF SERVICE
I HEREBY CERTIFY THAT I HAVE THIS 7TH DAY OF APRIL 2009,
SERVED THE FOREGOING COMMENTS OF THE COMMISSION STAFF, IN CASE
NO. MNT-T-08-2, BY MAILING A COPY THEREOF, POSTAGE PREPAID, TO THE
FOLLOWING:
ROSE MULVANY HENRY
BOULT CUMMINGS ET AL
STE 700
1600 DIVISION ST
NASHVILLE TN 37203
ALAN CREIGHTON /CEO
MOMENTUM TELECOM INC
2700 CORPORATE DR
STE 200
BIRMINGHAM AL 35242
l.~
SECRETARY
CERTIFICATE OF SERVICE