20190115Reply Comments.pdf

Stephen E. Coran
Lerman Senter PLLC
2001 L Street, NW, Suite 400
Washington,DC 20036
[phone]
scoran@l erm ansenter. com
Counsel to Newmax,LLC dba Intermax Networks
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
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IN THE MATTER OF THE APPLICATION
OF IYEWMAX, LLC DBA INTERMAX
NETWORKS FOR DESIGNATION AS AN
ELIGIBLE TELECOMMUNICATIONS
CARRIER
cAsE NO. NEW-T-r8-0r
NEWMAX, LLC DBA
INTERMAX NETWORKS
REPLY COMMENTS
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Newmax, LLC dba Intermax Networks ("lntermax"), by counsel and pursuant to the
Commission's Rules of Practice and Procedure and Order No. 34220, hereby submits its Reply
Comments in the above-captioned proceeding.l As further discussed below, the Protest and
Comment and Request for Hearing ("Tribe Comments") filed on January 8,2019 by the Coeur
d'Alene Tribe (the "Tribe") does not present issues material to the Commission's consideration
of Intermax's application ("Application") for designation as an Eligible Telecommunications
Carrier ("ETC") and, accordingly, does not require a hearing or further proceedings.2 The
Commission should instead accept the recommendations of its Staff, which found that the
Application "is in the public interest and should be approved."3
' Ord". No.34220 was adopted on December 19,2018 and provided notice of modified procedures and
set January 15,2019 as the deadline for Intermax to file Reply Comments.
' Intermax does not challenge the Tribe's request to intervene or its claim to standing with respect to the
four Census Blocks located on the Tribe's reservation (Census Blocks I6009940005, 160559400001,
16055940002 and 1655940003) (the "Tribal Blocks").
3 Comments of the Commission Staff, filed Jan. 8,2019 ("StaffComments"), at 5. Intermax appreciates
the StafPs diligence and support.
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Discussion
THE TRIBE'S ARGUMENTS DO NOT REQUIRE A HEARING AND
SHOULD BE REJECTED
The Tribe makes a number of claims, none of which wamants a hearing or further
proceedings to resolve, and none of which calls into question Intermax's eligibility to be
designated as an ETC.
First, the Tribe alleges that Intermax failed to commit to providing Lifeline services as
required by Federal Communications Commission ("FCC") ruies and that this omission requires
a hearing to resolve.a However, in its Application, Intermax 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."S It was not necessary for Intermax to
specifically list in its Application every legal requirement to which it is subject, and Commission
Staff did not request such a specific statement in advance of its recommending approval of the
Application. To the extent any question remains,Intermax affirms 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 of the Application.6 No hearing is required.
Second, there is no requirement that, as a condition to approval of its Application,
Intermax must cletermine which of its own faciiities it will use for Lifeline.T Federal statute
permits ETCs to offer the supported service "either using its own facilities or a combination of
its own facilities and resale of another carrier's services."8 But nowhere is this right expressed as
a prerequisite to obtaining ETC approval. To the extent different rules apply for facilities located
o Tribe Comments at 2.
5 Application at 5.
6 See47 C.F.R. $$ 54.101(d)and 54.405(a);47 C.F.R. SubpartE.
'Tribe Comments at2-3.I See 47 U.S.C. $ 21a(e)(1(A).
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on Tribal lands, the Tribe has cited no basis by which it believes that Intermax will not comply.
No hearing is required.
Third, there is no prerequisite for Intermax to register to do business with the Tribe and
receive a business license to operate on Tribal lands prior to obtaining ETC status, as the Tribe
contends.e When Intermax is ready to do business in the Tribal Blocks, it will of course obtain
whatever permits are necessary, as required by FCC rules.l0 There is no basis to hold the
Application in abeyance.
Fourth, the Tribe complains that Intermax did not comply with the Tribal consultation
provisions of the FCC's rules.r ' But the FCC rule it cites, 47 C.F.R. $ 54.1004(d), does nor
apply to the Connect America Fund ("CAF") program - it applies to the Mobility Fund, which is
a separate universal support program and is therefore inapplicable to Intermax's CAF Phase II
obligations.'' Th" CAF Phase II rules appear in 47 C.F.R. $ 54.301 et seq. whereas the Mobility
Fund rules appear in 47 C.F.R. $ 54.1001 et seq. With respect to Intermax's relationship with
the Tribe, 47 C.F.R. $ 54.313(a)(5) requires CAF Phase II recipients to include in their annual
reports information about their service on Tribal lands"[tJo the extent the recipient serves Tribal
lands."t3Intermax is not a CAF recipient at this time, nor is it serving Tribal areas at this time.
When it provides service on Tribal lands, it will be subject to reporting requirements under FCC
and State rules, but it is not subject to consultation obligations as a condition to receiving ETC
designation. Even if there is a federal notice or consultation requirement that Intermax did not
e Tribe Comments at 3.
t0 See 47 C.F.R. $ 54.313(aXsXv) (requiring CAF Phase II recipients to obtain required licenses and
approvals to conduct business on Tribal lands).rr Tribe Comments at4-5.
'2 The reference to 47 C.F.R. $ 54.1004(d) appears to stem from Intermax's citation to that rule in its
November 29,2018 Application supplement, an error that has been unfortunately repeated in subsequent
filings by both Commission Staffand the Tribe. Intermax apologizes for this error.
'' 47 C.F.R. $ 54.313(a)(5) (emphasis added). Tribal authorities atso are entitled to notice if CAF Phase
II recipients do not meet prescribed build-out milestones. ,See 47 C.F.R. $ 54.320(d).
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follow, violation of an FCC rule is a question for the FCC to consider, not the Commission in its
review of Intermax's ETC eligibility. Further, the Tribe cannot claim that it was prejudiced
given its filing of the Tribe Comments and the engagement with the Tribe that Intermax initiated
in December 2018. There is no basis to hold the Application in abeyance.
Fifth, there is no basis for the Commission to withhold approval of Intermax's
Application simply because the Tribe's subsidiary Red Spectrum, LLC ("Red Spectrum"), has
filed an application for ETC designation with the FCC.14 Under the terms of the CAF Phase
program, there will be only one CAF Phase II recipient in a given census block, so there will not
be "a competing ETC designation" at the census btock level, asthe Tribe implicitly asserts.l5
But even if there were more than one ETC for the same census block, the Tribe fails to explain
why this would be contrary to the public interest and require a hearing on the subject
Application.
Properly considered, the Tribe presents no basis for a hearing, no basis for the
Commission to hold its Application in abeyance, and no basis for rejection of the Application.
ro Tribe Comments at 5-6. Intermax notes that Red Spectrum's ETC application seeks ETC status "for
the Tribe and Red Spectrum's entire service area, which are the boundaries of the Coeur d'Alene
Reservation." Petition of Red Spectrum LLC for Designation as an Eligible Teiecommunications Carrier,
WC Docket No. 09-197 (filed Sept. 12,2018), at 12. The FCC determined that this application "seek[s]
designation outside the CAF-eligible census blocks as a Lifetime-only ETC." Public Notice, "Wireline
Competition Bureau Seeks Comment on Petitions for Designation as an Eligible Telecommunications
Carrier for the Purpose of Becoming Eligible to Receive Connect America Fund Phase II Auction
support, DA l8-1019 (rel. Oct.3,2018), at4n.2 (emphasis added). The geographic areasubjectto ETC
designation is limited to the combination of census blocks for which the applicant was the high bidder at
Auction 903, not the boundaries of the Reservation. See Lifeline and Link Up Reform and Modernization
et al.,31FCC Rcd 3962,3974,4074-75 (2016) (requiring all high-cost recipients to meet Lifeline
obligations in all areas where they deploy a network pursuant to a broadband service obligation and are
commercially offering qualifuing service). At their option, CAF auction winners may seek designation
outside of such area to offer "Lifeline-only" services, but ETC status does not extend outside the 50
census blocks for which Red Spectrum was the winning bidder and thus cannot create CAF-supported
competition in the same census blocks.
'' Tribe Comments at 6.
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II.THE COMMISSION SHOULD FOLLOW THE RECOMMENDATIONS OF
ITS STAf,'F AND APPROVE THE APPLICATION
In its Comments, Commission Staff cites its review of the Application under applicable
federal and state laws.16 Based on this review, the Staff found that Intermax satisfies the public
interest considerations and meets other commitments such as functionality in emergencies,
provision of service as a common carrier, advertising and consumer protectio.r.'' Co*mission
Staff frrther concluded that Intermax "will provide all universal services supported by the
federal USF throughout its service territory; it has addressed all of the public interest questions
that accompany an ETC Application; and it will provide a local usage plun."l8 It accordingly
"believes Intermax's Application for designation as an ETC in Idaho is in the public interest ad
should be approved."le Nothing in the record suggests a contrary conclusion, and the
Commission therefore should approve the Application.
Conclusion
The Tribe makes a number of arguments, none of which warrants further Commission
proceedings. The Commission should accept the recommendations of its Staff and expeditiously
approve the Application.
Respectfully submitted this 15th day of January, 2}lg.
E. Coran
Counsel to Newmax,LLC dba Intermax Networks
'u StaffComments at 2-3t' Id. at3-s.tr Id. at s.
" Id.
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Certificate of Service
I hereby certify that I have this 15th day of January,2019, served the foregoing Reply
Comments of NewmaxrLLC dba Intermax Networks, in Case No. NEW-T-I8-01, 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 83720-007 4
sean.costello@puc. idaho. 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 Technolo gy
Coeur d'Alene Tribe
850 A. Street
P.O. Box 408
Plummer,Idaho 83851
vj fasthorse@cdatribe-nsn. gov
E. Coran