20190118Decision Memo.pdf

DECISION MEMORANDUM
TO:COMMISSIONER KJELLANDER
COMMISSIONER RAPER
COMMISSIONER ANDERSON
COMMISSION SECRETARY
COMMISSION STAFF
LEGAL
FROM:SEAN COSTELLO
DEPUTY ATTORNEY GENERAL
DATE: JANUARY 18,2019
SUBJECT:APPLICATION OF NEWMAX, LLC, DBA INTERMAX NETWORKS,
FOR DESIGNATION AS AN ELIGIBLE TELECOMMUNICATIONS
CARRIER; CASE NO. NEW-T-18-01
This decision memo relates to the Coeur D'Alene Tribe's (l) Petition to Intervene and
(2) Protest and Comment and Request for Hearing.
PROCEDURAL BACKGROUND
On November 5, 2018, Newmax, LLC dba Intermax Networks (Intermax or the
Company) applied to the Commission, under 47 U.S.C. $ 2la(eX2), 47 C.F.R. $$ 54.201 , et seq.,
IdahoPUCOrderNo.2984l,andIDAPA3l.46.0l etseq.,foranOrderdesignatingtheCompany
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.r 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 I 5, 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, on the other hand, filed
a Petition to Intervene, and a separate Protest and Comment and Request for Hearing.
I The Company filed a Supplemental Statement on Local Usage Plans with the Commission on December 3, 201 8.
IDECISION MEMORANDUM
On January 15, 2018, 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.
SUMMARY OF POSITIONS BEARING ON TRIBE'S FILINGS
A. Commission StafPs 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 through its 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. at2-6.
The Tribe asked for an order: (l) allowing the 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. at2-5 and 4l C.F.R. 54.1004(d). The Tribe requested a hearing pursuant to
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.
2DECISION MEMORANDUM
C. Company's Reply.
The Company replied that 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 l
The Company stated the Tribe's requests should be denied because: (l) 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 does not have to decide
exactly how the Company would provide the services-i.e., whether only through its 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 in order 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 service2; and (5) approval of the
Company's Application should not be withheld simply because the Tribe has applied for ETC
2 Intermax contends that 47 C.F.R. S 54.1004 applies to the Mobility Fund, not the CAF Phase II Auction for
purposes of tribal notification, where the CAF Phase II Auction is govemed by 47 C.F.R. $ 54.313(a)(5).
47 C.F.R. g 5a.1004(a) states, in pertinent part, "[a] Tribally-owned or -controlled entity that has pending an
application to be designated an Eligible Telecommunications Carrier may participate in any Mobility Fund Phase I
auction, including any auction for support solely in Tribal lands, by bidding for support in areas located within the
boundaries of the Tribal land associated with the Tribe that owns or controls the entity." (Emphasis added).
47 C.F.R. g 5a.313(a)(5) applies to annual reporting requirements for high-cost recipients, including CAF Auction
Phase II recipients, stating the following, among other requirements, must be present on annual reports: "To the
extent the recipient serves Tribal lands, documents or information demonstrating that the ETC had discussions with
Tribal govemments that, at a minimum, included: (i) A needs assessment and deployment planning with a focus on
Tribal community anchor institutions; (ii) Feasibility and sustainability planning; (iii) Marketing services in a
culturally sensitive manner; (iv) Rights of way processes, land use permitting, facilities siting, environmental and
cultural preservation review processes; and (v) Compliance with Tribal business and licensing requirements. Tribal
business and licensing requirements include business practice licenses that Tribal and non-Tribal business entities,
whether located on or off Tribal lands, must obtain upon application to the relevant Tribal government office or
division to conduct any business or trade, or deliver any goods or services to the Tribes, Tribal members, or Tribal
lands. These include certificates of public convenience and necessity, Tribal business licenses, master licenses, and
other related forms of Tribal government licensure."
JDECISION MEMORANDUM
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. at2-4.
While the Company does not object to the Tribe intervening, per se, it denies there is
any need for additional process or hearing. Instead, the Company recommends that the
Commission approve the Application because the Application is in the public interest and all
federal and state laws have been complied with. Id. at 5.
COMMISSION DECISION
l. Tribe's Petition to Intervene. Does the Commission wish to grant or deny the
Tribe's petition to intervene according to Rule(s) 7l-75. See IDAPA
31.01.01 .071-075.
2. Tribe's Protest Comments and Hearing Request.
a. Does the Commission wish to stay the case "until . . . the Tribe certifies
to the Commission that Intermax is qualified to do business on the
reservation"?
b. If not, does the Commission wish to convert this case from modified
procedure to a technical hearing docket (which could include an
intervention deadline and other process more typical of a case with a
technical hearing)?
c. If not, does the Commission wish to find that modified procedure
remains appropriate, deem this case fully submitted, and deliberate on
the written record now before it?
3. Anything else?
Sean Costello
Deputy Attorney General
tI\LegaI\TELEPHONE\NEW-T- I 8-0 l\NEWT I E0 I memo sc I docx
4DECISION MEMORANDUM