20190212Supplemental Reply Comments.pdf

Stephen E. Coran
Lerman Senter PLLC
2001L Street, NW, Suite 400
Washington, DC 20036
[phone]
scoran@lermansenter. com
Counsel to Newmax,LLC dba lntermax Networks
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
REf,EIVED
?0 i9 FtB I 2 At{ l0: 39
\-EC
IN TIIE MATTER OF THE APPLICATION )
oF NEWMAX,LLC DBA INTERMAX )
NETWORKS FOR DESTGNATTON AS AN )
ELIGIBLE TELECOMMUMCATIONS )CARRIER )
cAsE NO. NEW-T-18-01
NEWMAX,LLC DBA
INTERMAX IYETWORKS
SUPPLEMENTAL REPLY
COMMENTS
Newmax, LLC dba Intermax Networks ("Intermax"), by counsel and pursuant to the
Commission's Rules of Practice and Procedure and Order No. 34237, hereby submits its
Supplemental Reply Comments in response to the Supplemental Comments submitted by the
Coeur d'Alene Tribe (the "Tribe") on February 7,2019 inthe above-captioned proceeding.l
Like its initial Comments in this proceeding, the Tribe presents no basis for the Commission to
deny, condition or delay grant of Intermax's application for eligible telecommunications carrier
("ETC") designation ("Application"), or to conduct a formal hearing. In light of the fast-
approaching February 25,2019 deadline established by the Federal Communications
Commission ("FCC") for obtaining and reporting ETC designation, Intermax respectfully
requests expeditious grant of its Application.
' O.de. No. 34237 was released on January 2g,2}lg and established February l5,2}lg as the deadline
for lntermax to file Supplemental Reply Comments.
1
A. Lifeline
As its first argument, the Tribe attempts to pit Intermax's ETC Application and its
Lifeline commitment against the "backdrop"2 of a recent D.C. Circuit appellate decision
remanding certain of the FCC's Lifeline rules.3 To the extent the Tribe suggests that FCC
rulemaking proceedings and the Court's remand somehow affect this Commission's decision of
whether grant of the Application is in the public interest, it is sorely mistaken. The rulemaking
process related to the Lifeline rules is not a consideration when determining Intermax's
commitment to comply with Commission rules, and abide by its commitment to provide Lifeline
service in its supported census blocks.
It is a requirement of the FCC's Connect America Fund ("CAF") rules that Intermax
offer Lifeline services to its supported census blocks, and Intermax has committed to do that on
two occasions. First, in its Application, lntermax stated that it "satisfies or will within a
reasonable time after designation, satisfy all the relevant requirements for designation as an ETC
specified in federal law and those under state law."4 This includes Lifeline, to the extent
required by FCC rules. Second, in its earlier Reply Comments, Intermax confirmed that: "To the
extent any question remains, Intermax affrrms that it will offer Lifeline services as required by
FCC rules and does not object to the inclusion of such a requirement as a condition to approval
2 Tribe Supplemental Comments at 3.
3 See National Lifeline Association v. FCC,Nos. l8-1026, l8-1080, D.C. Circuit, issued Feb. 1, 2019,
Slip Op. Notably, the passage quoted by the Tribe refers to relinquishment of Lifeline service by "major
facilities-based carriers." See Tribe Supplemental Comments atZ, quoting Nat'l Lifeline Ass'n at27.
Under any definition, lntermax is not a "major facilities-based carrier" or a "traditional" carrier and
cannot therefore be tainted with their purported shortcomings.
a Application at 5.
2
of the Application."5 The Commission should reject the Tribe's disingenuous attempt to impose
a higher standard for Intermax than is required by law.6
Intermax appreciates that the state of Lifeline is somewhat in flux and that there is a need
for such service in the four supported census blocks on the Tribe's reservation. Intermax takes
seriously its obligations as a CAF auction winner and understands the consequences of non-
compliance. Intermax looks forward to further engagement with the Tribe to deploy CAF-
supported services in the four census blocks, including Lifeline service.
B. Adequate Service
The Tribe alleges that Intermax has fallen short in its engagement with Tribal leaders and
has not explained the "vital services" it will provide to the reservation."T It alleges that Intermax
has not met the Commission's public interest test and that Intermax can only meet that burden
through a hearing.s
When considering the "unique advantages and disadvantages" of Intermax's service
offering, "commitments" regarding service quality and Intermax's ability to provide the service
in a "reasonable time frame," the Commission looks to the record in this proceeding and
applicable law. Here, the Application demonstrates the advantages of providing broadband and
voice services in the supported census blocks, includes commitments on service quality and is
subject to the FCC's build-out milestones. Importantly, Commission Staffhas concluded on at
least two occasions that the Application is consistent with the public interest and should be
5 Reply Comments at 2.
6 The Tribe makes a thinly-veiled attempt to discredit Intermax by claiming that its counsel "to the best of
our knowledge, is not licensed to practice law in Idaho or admittedpro hac vice for this proceeding."
Tribe Supplemental Comments at 4. Undersigned counsel confirmed with Commission staffthat the
Modified Procedure applicable to this proceeding constitutes an "administrative proceeding" under Rule
043 that does not require admission to the Idaho State Bar or admission pro hac vice.
'Tribe Supplemental Comments at 6. In its Reply Comments,lntermaiexplained that it had fully
complied with applicable FCC Tribal engagement rules. ,See Reply Comments at3-4.
E
^See Tribe Supplemental Comments at 6.
aJ
granted.e If in the future Intermax does not meet its commitments, it will be subject to applicable
FCC rules and enforcement and remediation procedures.l0 Those procedures, not a Commission
hearing to delay action on Intermax's state ETC status, are controlling.
C. Conclusion
Having had trvo bites of the apple, the Tribe has presented no reason for the Commission
to conduct a hearing or to further delay grant of Intermax's Application. The Commission
should expeditiously grant the Application in suffrcient time for Intermax to report to the FCC by
its February 25,2019 deadline that it has received ETC designation for all of its supported
census blocks in Idaho.
Respectfully submitted this l2n day of February,2}lg.
E. Coran
Counsel to Newmax,LLC dba lntermax Networks
e See Decision Memorandum of Sean Costello, Deputy Attorney General (Jan. 18, 2019); Comments of
the Commission Staff(filed Jan. 8,2019).
to See, e.g., 47 C.F.R. $ 54.320. i
4
Certificate of Service
I hereby certifu that I have this l2th day of Febru ary , 2019, served the foregoing
Supplemental Reply Comments of Newmax, LLC dba Intermax Networks, in Case No.
NEW-T-18-01, by email and first class U.S. mail to the following:
Diane Hanian, Secretary
Idaho Public Utilities Commission
472 W . Washington Street
P.O. Box 83720
Boise, Idaho 83720-007 4
diane.hanian@puc. idaho. gov
Sean Costello, Deputy Attorney General
Idaho Public Utilities Commission
472 W . Washington Street
P.O. Box 83720
Boise, Idaho 83720-0074
[e-mail]. gov
Eric Van Orden, Office of Legal Counsel
Coeur d'Alene Tribe
850 A. Street
P.O. Box 408
Plummer,Idaho 83851
ervanorden@cdatribe-nsn. gov
Valerie Fasthorse, Director, Information Technology
Coeur d'Alene Tribe
850 A. Street
P.O. Box 408
Plummer,Idaho 83851
vj fasthorse@cdatribe-nsn. gov
E. Coran