20190129amended_modified_procedure_order_no_34237.pdf

Office of the Secretary
Service Date
January 29,2019
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION )CASE NO.NEW-T-18-01
OF NEWMAX,LLC DBA INTERMAX )
NETWORKS FOR DESIGNATION AS AN )ORDER GRANTING
ELIGIBLE TELECOMMUNICATIONS )INTERVENTION
CARRIER )
)ORDER DENYING REQUEST
)FOR HEARING
)AMENDED NOTICE OF
)MODIFIED PROCEDURE
)ORDER NO.34237
PROCEDURAL BACKGROUND
On November 5,2018,Newmax,LLC dba Intermax Networks (Intermax or the
Company)applied to the Commission,under 47 U.S.C.§214(e)(2),47 C.F.R.§§54.201,et seq.,
Idaho PUC Order No.29841,and IDAPA 31.46.01 et seq.,for an order designating the Company
as an eligible telecommunications carrier (ETC)in certain Idaho census blocks.The Company
seeks ETC designation so it can receive support it was provisionally awarded under the Federal
Communications Commission (FCC)Connect America Fund (CAF)Phase II Auction.
On December 19,2018,the Commission issued a Notice of Application and Modified
Procedure that set a January 8,2019,comment deadline and a January 15,2019,reply deadline.
Order No.34220 at 2-3.On January 8,2019,Commission Staff filed comments recommending
the Commission approve the Application in the public interest.The Coeur d'Alene Tribe (the
"Tribe"),on the other hand,filed a Petition to Intervene,and a separate Protest and Comment and
Request for Hearing.On January 15,2019,the Company replied to the Tribe's filings by asking
the Commission to approve the Application and grant it ETC status without further proceedings
or a hearing.
On January 22,2019,we considered the above outlined filings at our public decision
meeting.We now grant the Tribe's intervention in this docket,deny its request to stay these
proceedings,deny its request for a technical hearing,and amend the Notice of Modified Procedure
to extend the comment deadlines.
The Company filed a Supplemental Statement on Local Usage Plans with the Commission on December 3,2018.
ORDER NO.34237 1
SUMMARY OF COMMENTS AND TRIBE'S FILINGS
The Tribe's filings and the comments germane to them are summarized below.
A.Commission Staff's Comments.
Staff recommended the Commission approve Intermax's Application for ETC
designation.See Staff Comments at 5.Staff did not respond to,nor address,the Tribe's filings,
or the Company's reply comments.
B.Tribe's Petition to Intervene,Protest and Comments and Request for Hearing.
The Tribe submitted a Petition to Intervene,and a Protest and Comment and Request
for Hearing.The Tribe stated its interest arises because Intermax seeks ETC designation on four
Census Blocks on the Coeur d'Alene Reservation,over which the Tribe has sovereign jurisdiction.
The Tribe argued that Intermax failed to properly apply for ETC designation in Idaho
and on Tribal lands because Intermax:(a)did not commit to provide Lifeline services (including
whether it would provide Lifeline services throughits own facilities,or through resold services);
(b)did not demonstrate it is authorized to do business on the reservation;(c)did not adequately
meet the Tribal consultation provisions of the FCC's regulations;and (d)filed an Application that
may not be in the public interest because the Tribe has applied for a competing ETC designation
with the FCC.Id.at 2-6.
The Tribe asked for an order:(1)allowingthe Tribe to intervene as a party;(2)holding
the case in abeyance "until ...the Tribe certifies to the Commission that Intermax is qualified to
do business on the reservation";(2)determining whether sufficient notice was provided to the
Tribe;(3)determining whether Intermax would provide Lifeline services and,if so,whether it
would provide the services through its own facilities or through resold services);and (4)
determining whether Intermax has substantively engaged with the Tribe according to federal
regulation.See Id.at 2-5 and 47 C.F.R.54.1004(d).The Tribe requested a hearing under
Commission Rule 203 (in a Modified Procedure case,"[p]ersons desiring a hearing must
specifically request a hearing in their written protests or comments").Id.at 6.
C.Company's Reply.
The Company replied that the Tribe "does not present issues material to the
Commission's consideration of Intermax's application"for ETC designation,and,therefore,no
hearing or further proceedings are necessary."See Newmax,LLC DBA Intermax Reply
Comments at 1.
ORDER NO.34237 2
The Company stated the Tribe's requests should be denied because:(1)the Company
will comply with federal and state law if granted ETC designation,but the Company did not have
to state every legal requirement to which it is subject,including its participation in Lifeline;(2)
while federal law permits ETCs to offer services through their own facilities or a combination of
their facilities and the resale of another carrier's services,the Commission need not decide exactly
how the Company would provide the services-i.e.,whether only throughits own facilities,only
through resold services,or through a combination of both-as a condition to granting the Company
ETCs status;(3)the Company did not have to register to do business and obtain a business license
from the Tribe to become an ETC;rather,the Company would obtain requisite Tribal permissions
before doing business on the Tribe's lands;(4)the Tribe cites an incorrect and irrelevant FCC
regulation to argue that when the Company provides service to Tribal lands,it is subject to
consultation obligations as a condition to receiving ETC designation,instead of annual reporting
requirements related to Tribal service;and (5)approval of the Company's Application should not
be withheld simply because the Tribe has applied for ETC designation with the FCC,because only
one recipient of support from the CAF Phase II Auction will be in each census block and therefore
the Company cannot compete.Id.at 2-4.
While the Company did not object to the Tribe intervening,it denies there is any need
for additional process or hearing.Instead,the Company recommends that the Commission
approve the Application as it is in the public interest and all federal and state laws have been
complied with.Id.at 5.
FINDINGS AND DISCUSSION
Our findings and decisions about the Tribe's filings are discussed below.
A.Tribe's Petition to Intervene
We find that no party timely opposed this Petition to Intervene.
We further find that based on the pleadings and other documents filed in this case,
intervention by this party would serve the purposes of intervention as described by Rule 74 of the
Rules of Procedure and should be granted.
B.Tribe's Protest and Petition for Technical Hearing.
We reiterate our findings in Order No.34220,where we determined that Modified
Procedure,under Rules 201 through 204 of the Idaho Public Utilities Commission's Rules of
Procedure,would be an effective way to obtain public input and participation in this matter.The
Tribe's Protest and Comments have not persuaded us that a technical hearingwith experttestimony
ORDER NO.34237 3
is necessary or would add to the record any more than what could be accomplished through written
comments.
Therefore,we deny the Tribe's request to stay these proceedings until the Tribe
certifies that Intermax is eligible to do business on the reservation.Likewise we deny the Tribe's
request for a technical hearing and,instead,amend the schedule to extend the Modified Procedure
comment period,as outlined below.Extending the comment deadline will provide interested
parties and persons more time to respond to current comments and filings,and the Commission a
more full and substantial record on which to base its decision.
AMENDED NOTICE OF MODIFIED PROCEDURE
YOU ARE HEREBY NOTIFIED that the Commission will proceed under Modified
Procedure pursuant to Rules 201 through 204 of the Idaho Public Utilities Commission's Rules of
Procedure.See IDAPA 31.01.01.201-.204.
YOU ARE FURTHER NOTIFIED that the comment period in this matter will be
extended and that any person desiring to state a position on this Application may file a written
comment in supportor opposition with the Commission no later than February 8,2019.The
comment must contain a statement of reasons supporting the comment.Persons desiring a hearing
must specifically request a hearing in their written comments.Written comments concerning this
Application shall be mailed to the Commission and the Applicant at the addresses reflected below:
Commission Secretary Newmax,LLC dba Intermax Networks
Idaho Public Utilities Commission Michael R.Kennedy,President
PO Box 83720 7400 N.Mineral Drive,Ste.300
Boise,ID 83720-0074 Coeur d'Alene,Idaho 83815
[e-mail]
Street Address for Express Mail:
472 W.Washington Street Copy to:
Boise,ID 83702-5918 Stephen E.Coran
Lerman Senter PLLC
2001 L Street,NW,Suite 400
Washington,DC 20036
scoran@ lermansenter.com
These comments should contain the case caption and case number shown on the first page of this
document.Persons desiring to submit comments via e-mail may do so by accessing the
Commission's home page located at www.puc.idaho.gov.Click the "Utility Case Comment or
Question Form"under the "Consumers"tab.Complete the comment form using the case number
as it appears on the front of this document and click "Submit."
ORDER NO.34237 4
YOU ARE FURTHER NOTIFIED that if no additional written comments or protests
are received within the time limit set,the Commission will consider this matter on its merits and
enter its order without a formal hearing.If additional written comments are received within the
time limit set,the Commission will consider them and,in its discretion,may set the same for
formal hearing.
YOU ARE FURTHER NOTIFIED that the Company shall file reply comments,if
necessary,no later than February 15,2019.
YOU ARE FURTHER NOTIFIED that all proceedings in this case will be held
pursuant to the Commission's jurisdiction under Title 62 of the Idaho Code and specifically Idaho
Code §§62-610D,62-615,and 62-622.The Commission may enter any final order consistent
with its authorityunder Title 62.
YOU ARE FURTHER NOTIFIED that all proceedings in this matter will be conducted
pursuant to the Commission's Rules of Procedure,IDAPA 31.01.01,and Idaho Code §62-619.
ORDER
IT IS HEREBY ORDERED that the Tribe's Petition to Intervene is granted.
IT IS FURTHER ORDERED that the Tribe's request to stay these proceedings is
denied.
IT IS FURTHER ORDERED that all parties in this proceeding serve all papers
hereafter filed in this matter on all parties of record.This Intervenor is represented by the following
for purposes of service:
,Coeur d'Alene Tribe:
Eric Van Orden Valerie Fasthorse
Office of Legal Counsel Director,Information Technology
Coeur d'Alene Tribe Coeur d'Alene Tribe
850 A.Street 850 A.Street
P.O.Box 408 P.O.Box 408
Plummer,ID 83851 Plummer,ID 83851
Ofc:208-686-0400 Ofc:208-686-5059
Fax:[phone] Fax:[phone]
[e-mail] [e-mail]
IT IS FURTHER ORDERED that the Tribe's request for a technical hearing is
denied.
IT IS FURTHER ORDERED that this matter will continue to be processed by
Modified Procedure,IDAPA 31.01.01.201-.204.Persons interested in submitting written
ORDER NO.34237 5
comments must do so no later February 8,2019.The Company may file reply comments by no
later than February 15,2019.
DONE by Order of the Idaho Public Utilities Commission at Boise,Idaho this ZŸ
day of January,2019.
PAUL KJELL NDER,PRESIDENT
KR TIN RAP ,MMISSIONER
ERIC ANDERSON,COMMISSIONER
Diane M.Hanian
Commission Secretary
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ORDER NO.34237 6