20190108Petition to Intervene.pdf

RECIEIVED
2*t$ JAfd -B Pl{ 2: 35COEUR D' ALENE TRIBE
Office of Legal Counsel
850 A STREEET
P.O. BOX 408
PLUMMER, ID 83851
[phone]. Fax [phone]
January 8. 2019
Via Hand Deliverlt
Diane Hanian
Commission Secretary
Idaho Public Utilities Commission
472W. Washington
Boise, ID 83702
Re:In the Matter of the Application of Newmax LLC dba Intermax Networks for
Designation as an Eligible Telecommunications Carrier under 47 U.S.C.
$21a(eX2)
IPUC Case No. NEW-T-I8-01
Dear Ms. Hanian:
Enclosed are an original and (7) seven copies of the Coeur d'Alene Tribe's Petition to
Intervene and the Protest and Comments for filing in the above matter. Please conform the
additional copy of the Petition and the Protest and return it with our runner.
Thank you for your courteous assistance in this matter. Please do not hesitate to call if you have
questions or comments.
S
(r
an Orden
Office of Legal Counsel
Coeur d'Alene Tribe
Eric Van Orden [ISB No. 4774)
Office of Legal Counsel
Coeur d'Alene Tribe
850 A. Street
P.O. Box 408
Plummer, ID 83851
Attorneys for the Coeur d'Alene Tribe
BEFORE THE IDAHO PUBLIC UTILITTES COMMISSION
F"Ii] il1,/=D
li jj J,:t; -A pH 2: 3I
IN THE MATTER OF THE APPLICATION
OF NEWMAX, LLC DBA INTERMAX
NETWORKS FOR DESIGNATION AS AN
ELIGIB LE TELECOMMUNICATIONS
CARRIER
CASE NO. NEW.T.18.O1
COEUR D'ALENE TRIBE
PETITION TO INTERVENE
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The Coeur d'Alene Tribe ("CDA" or o'Tribe") petitions this Commission for leave to
intervene in the above entitled proceeding pursuant to Rules 72 and 73 of the Commission's
Rules of Practice and Procedure, IDAPA 3 I .01 .01 .072 and - 073 . In support of this Petitiorl the
Tribe states as follows:
l. The Tribe is a federally recognized Tribe, pursuant to Executive Orders of June 14,
1867, and November 8, 1873, whose reservation is defined in those Executive Orders.
2. Four (4) of the Census Blocks for which Petitioner Newmax, LLC (dlblallntermax
Networks ("Intermax") seeks designation as an Eligible Telecommunications Carrier,
specifically 1 60099400005, 1 6055940000 l, 1 60559400002, and I 60559400003
("the CDA Census Blocks"), are on the Coeur d'Alene Reservation.
3. The Tribe has jurisdiction over the activities that occur in those Census Blocks.
4. As such, the Tribe has a direct and substantial interest in this proceeding, at least as it
applies to those Census Blocks, because this Commission's decision may, directly or
THE COEUR D'ALENE TRIBE'S PETITION TO INTERVENE - Page I of 3
.j
indirectly, affect the quality or cost of telecommunications service to member of the
Tribe on the Coeur d'Alene reservation.
5. The Tribe's representation for the purpose of service of pleadings and other written
materials are:
Eric Van Orden
Office of Legal Counsel
Coeur d'Alene Tribe
850 A. Street
P.O. Box 408
Plummer, ID 83851
Ofc: 208-686-0400
Fax: [phone]
Email: ervanorden@,cdatribe-nsn. eov
Valerie Fasthorse
Director, Information Technology
Coeur d'Alene Tribe
850 A. Street
P.O. Box 408
Plummer, ID 83851
Ofc: 208-686-5059
Fax: [phone]
Email : vj fasthorse@cdatribe-nsn. gov
6. This Petition is timely filed and will not unduly broaden the issues or otherwise delay
these proceedings.
WHEREFORE, the Tribe respectfully requests that the Commission grant this Petition to
Intervene and authorize the Tribe to participate in the above entitled proceedings with full rights
as a formal party.
DATED this Sth day of January,t9
an
Offic of Legal Counsel, Coeur d'Alene Tribe
Attorneys for the Coeur d'Alene Tribe
Cr
THE COEUR D'ALENE TRIBE'S PETITION TO INTERVENE - Page 2 of 3
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this Sth day of January 2019,I caused to be served a true
and correct copy of the foregoing document by the method indicated below and addressed to the
following:
Commission Secretary
Idaho Public Utilities Commission
472 W. Washington Street
P.O. Box 83720
Boise, lD 83720-0074
Caitlin E. O'Brien
Smith + Malek
601 E. Front Ave, Suite 304
Coeur d'Alene, ID 83814
Email : Caitlin@smithmalek. com
Mike Kennedy
President, Intermax Networks
7400 Mineral Drive, Suite 300
Coeur d'Alene, ID 83815
Email : mkennedy@intermaxteam. com
Eric V Orden
U.S. Mail
--K-Hand Delivered
_Overnight Mail
Facsimile
Email
U.S. Mail
Hand Delivered
Overnight Mail
Facsimile
Email
U.S. Mail
Hand Delivered
Mail
Facsimile
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THE COEUR D'ALENE TRIBE'S PETITION TO INTERVENE - Page 3 of 3
Eric Van Orden ISB No. 4774)
Office of Legal Counsel
Coeur d'Alene Tribe
850 A. Street
P.O. Box 408
Plummer, ID 83851
Attorneys for the Coeur d'Alene Tribe
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION
OF NEWMAX, LLC DBA INTERMAX
NETWORKS FOR DESIGNATION AS AN
ELIGIB LE TELECOMMUNICATIONS
CARRIER
CASE NO. NEW-T-I8-01
COEUR D'ALENE TRIBE
PROTEST AND COMMENT
AND REQUEST FOR HEARING
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The Coeur d'Alene Tribe ("CDA" or "Tribe"), pursuant to the Commission's Rules of
Practice and Procedure, IDAPA 203, hereby files this Protest and Comment and Request for
Hearing of the Notice of Modified Procedure, Order No 34220 in the above-referenced
proceeding.r In support of this Petition, the Tribe states as follows:
A. STANDING
The CDA is a federally recognized Tribe, pursuant to Executive Orders of June 14, 1867,
and November 8, 1873, whose reservation is defined in those Executive Orders. Four (4) of the
Census Blocks for which Petitioner Newmax, LLC (dlblal Intermax Networks ("Intermax")
seeks designation as an Eligible Telecommunications Carrier, specifically 160099400005,
160559400001, 160559400002, and 160559400003 ("the CDA Census Blocks"), are on the
I Order No. 34200 set the comment date in this proceeding for January 8,2019. This Protest therefore is
timely filed.
COEUR D'ALENE TRIBE'S PROTEST AND COMMENTS - Page I of 8
Coeur d'Alene Reservation. The Tribe has jurisdiction over the activities that occur in those
Census Blocks. As such, the Tribe has an interest in this proceeding, at least as it applies to
those Census Blocks.
B. PROTEST AND COMMENT
1. Intermax IIas Failed to Commit to Providing Lifeline Services As Required by FCC
Rules
Intermax's Petition is based on its winning Universal Service Fund (USF) support in FCC
Auction 903.2 One condition imposed on Auction 903 winners is that they provide Lifeline
service.3 Nowhere in its Petition before the Commission, however, does Intermax indicate that it
intends to offer Lifeline service. Given the importance of Lifeline service to Tribal areas,4 a
hearing is necessary to determine Intermax's commitment to providing Lifeline service.
Further, Intermax states that it will serve the proposed service area through "its own
facilities or a combination of its own facilities and resale of another carrier's facilities."s
Intermax provides no further elaboration of what percentage of the proposed service area will be
served with Intermax's own facilities, and which will be served using resold services. For
purposes of the Lifeline program on Tribal lands, the distinction between facilities-based and
2 Intermax Petition, p. 2 ("On August)8,2018, the Federal Communications Commission announced that
Intermax was provisionally selected for funding under the agency's Connect America Fund Phase II
Action (Auction 903)").
3 See Connect America Fund Phase II Auction, Notice and Filing Requirements and Other Procedures for
Auction 903, 83 Fed. Reg. 13590, 13600 (March 29,2018) ("all high-cost ETCs are required to offer
Lifeline voice and broadband service to qualifying low income consumers pursuant to the Lifeline
program rules").
a See, e.g. Bridging the Digital Divide for Low-Income Consumers: Fourth Report and Order,32FCC
Rcd 10475, t[ 3 (2018) ("When it adopted the enhanced Lifeline Tribal subsidy, the Commission noted
that the 'unavailability or unaffordability of telecommunications service on Tribal lands is at odds with
our statutory goal of ensuring access to such services to '[c]onsumers in all regions of the Nation,
including low-income consumers, and explained that the added Lifeline and Link Up support would help
lead to the deployment of more robust networks") (internal footnotes omitted).
5 Intermax Petition, p. 5.
COEUR D'ALENE TRIBE'S PROTEST AND COMMENTS - Page 2 of 8
non-facilities-based is critical. Carriers on Tribal lands receive an additional $25 per phone per
month in support (Enhanced Tribal Support or "Tier-4" Support), brfi only for those locations
served by the carrier's own facilities.6 To determine Intermax's commitment to provide Lifeline
services, and particularly to take advantage of the Tier-4 support, a hearing is necessary to
determine whether, as to the CDA Census Blocks, Intermax intends to provide service there
through its own facilities, or through resold services. If the latter, there is a substantial question
as to whether granting the ETC Petition would be in the Public Interest, because without Tier-4
support, historically carriers have either not provided Lifeline service, or have not aggressively
marketed the service, instead directing potential customers to non-Lifeline (and more expensive)
service packages.
2. Intermax Has Failed to Demonstrate That It Is Authorized to Do Business on the
Coeur d'Alene Reservation.
As a sovereign Tribe with jurisdiction over the CDA Census Blocks, the Tribe has the
right to determine what entities are allowed to conduct business on the CDA reservation.T Under
Tribal law, prior to conducting business, an entity must register to do business with the Tribe and
receive a business license, Coeur d'Alene Tribal Law and Order Code, $40-1.06. To date,
Intermax has done none of that. While seeking expedited consideration of its Petition before this
Commission, Intermax did not even reach out to the Tribe until Decernber 3, 2018, more than
6 See Bridging the Digital Dividefor Low-Income Consumers: Fourth Report and Order,32FCC Rcd at
fl 24 (201 8).
7 See, e.g., Babbitt Ford, Inc. v. Navajo Indian Tribe,7l0 F.2d 587, 592 (gth Cir. 1983), cert denied, 446
U.S. 926 (1984) ("The power to exercise tribal civil authority over non-Indians derives not only from the
tribe's inherent powers necessary to self-government and territorial management, but also from the power
to exclude nonmembers from tribal land," citing Merrion v. Jicarilla Apache Tribe,455 U.S. 130, l4l-44,
102 S.Ct. 894,903- 05,71 L.Ed.zdzl (1982)).
COEUR D'ALENE TRIBE'S PROTEST AND COMMENTS - Page 3 of 8
three (3) months after it first learned it won funding in Auction 903 for the CDA Census Blocks.8
Therefore, its Petition, as to the CDA Census Blocks, should be held in abeyance until such time
as the Tribe certifies to the Commission that Intermax is qualified to do business on the
reservation.
3. Intermax Has Failed to Adequately Meet the Tribal Consultation Provisions of the
FCC's Rules
Auction 903 winners seeking to receive support for Tribal lands are required to meet the
requirements of 47 C.F.R. $ 54.1004(d), which states:
(d) A winning bidder for support in Tribal lands shall notifu and engage
the Tribal governments responsible for the areas supported.
(1) A winning bidder's engagement with the applicable Tribal
government shall consist, at a minimum, of discussion regarding:
(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.
(2) A winning bidder shall noti$r the appropriate Tribal
government of its winning bid no later than five (5) business days after
being identified by public notice as a winning bidder.
(3) A winning bidder shall certify in its application for support that
it has substantively engaged appropriate Tribal officials regarding the
issues specified in $54.1004(dX1), at a minimum, as well as any other
8 There are questions as to whether the Tribe received adequate notice since the Petition Supplement,
itself dated November 29 , 2018 , was submitted five days before the date of the notice letter to the Tribe,
which was dated December 3,2018. An ancillary issue at hearing should be to determine whether the
December 3,2018, provided adequate notice to the Tribe.
COEUR D'ALENE TRIBE'S PROTEST AND COMMENTS - Page 4 of 8
issues specified by the Commission, and provide a summary of the results
of such engagement. A copy of the certification and summary shall be sent
to the appropriate Tribal officials when it is sent to the Commission.
Intermax has failed to comply with this provision in a number of ways. First, it failed to
notify the Tribe within five business days after being identified by public notice as a winning
bidder, as required in Section 54.1004(d)(2). Intermax learned it was a winning bidder via the
FCC's Public Notice of August 28,2018. The only "notification" given to the Tribe was the
December 3,2018 letter contained in Intermax's supplement, which as discussed above, is
suspect as to whether the letter was ever delivered to the Tribe.
Second, the only "substantive[] engage[ment]" with Tribal officials to date has been the
December 3,2018 letter. Thus, Intermax cannot certifu to this Commission that it is in
compliance with the Tribal Consultation requirements of FCC rule 54.1004. The Commission
should hold the pending Petition in abeyance until such time as the Tribe reports to the
Commission that Intermax has substantively engaged with the Tribe. Granting the instant
Petition prior to such a report would not be in the Public Interest.
4. There Remains An Open Question As to Whether Granting the Instant Petition is in
the Public Interest
The Tribe is the 100% owner of Red Spectrum, LLC, a company formed under the laws
of the Coeur d'Alene Tribe. Red Spectrum has been deploying telecommunications and
broadband facilities on the Coeur d'Alene reservation for over a decade, and in 2015 completed a
$10.8 million BIP/ARRA grant/loan buildout that includes l2l route miles of fiber and eleven
communications towers helay points on the reservation. On September 12,201 8, Red Spectrum
filed a Petition for Designation as an Eligible Telecommunications Carrier with the FCC for the
entire reservation, including the four CDA Census Blocks for which Intermax seeks ETC
COEUR D'ALENE TRIBE'S PROTEST AIID COMMENTS - Page 5 of 8
designation from this Commission.e Since Idaho lacks jurisdiction over a Tribally-owned carrier
operating on Tribal lands, submission of the ETC petition by Red Spectrum to the FCC was
appropriate.r0 Because of the pendency of Red Spectrum's FCC ETC Petition, which would
grant it ETC status in the four CDA Census Blocks, a hearing is necessary to determine whether
it is appropriate or in the Public Interest for this Commission to grant Intermax, a non-Tribal
carrier, ETC status on the Coeur d'Alene reservation, in what would effectively become a
competing ETC designation.
C. REOUEST FOR HEARING
Pursuant to IPUC Rules of Procedure203, the Tribe hereby specifically and respectfully
requests a hearing in this proceeding to investigate and resolve the issues raised herein.
D. THE TRIBE'S REPRESENTATIVES
The Tribe's representatives for the purpose of service of pleadings and other written
materials are:
Eric Van Orden
Office of Legal Counsel
Coeur d'Alene Tribe
850 A. Street
P.O. Box 408
Plummer, ID 83851
Ofc: 208-686-0400
Fax: [phone]
Email : ervanorden@cdatribe-nsn. gov
Valerie Fasthorse
Director, Information Technology
Coeur d'Alene Tribe
850 A, Street
P.O. Box 408
Plummer, ID 83851
Ofo: 208-686-5059
Fax: [phone]
Email : vj fasthorse@cdatribe-nsn. eov
e A copy of that Petition is appended hereto as Attachment A.
10 See Federal-State Joint Board on (Jniversal Service; Promoting Deployment and Subscribership in
Unserved and Underserved Areas, Including Tribal and Insular Areas, Twelfth Report and Order,
Memorandum Opinion and Order, and Further Notice of Proposed Rulemaking, 15 FCC Rcd 12208
(2000) ('Tweffih Report and Order"); see also Standing Rock Telecommunications, Inc. Petilionfor
Designation as an Eligible Telecommunications Carrier, Memorandum Opinion and Order on
Reconsideration, 26 FCC Rcd 91 60, 1 123 (2011\ (" Standing Rock II') .
COEUR D'ALENE TRIBE'S PROTEST AND COMMENTS - Page 6 of 8
WHEREFORE, The Coeur d'Alene Tribe respectfully requests that the Commission hold
a hearing in this proceeding, hold the instant Petition in abeyance until Intermax meets its
requirements under 47 CFR $ 54.1004 and is properly registered to do business on the
reservation.
DATED this 8th day of January,9
G.
Eric an Orden
of Legal Counsel, Coeur d'Alene Tribe
Attorneys for the Coeur d'Alene Tribe
/rl-MItX
COEUR D'ALENE TRIBE'S PROTEST AND COMMENTS - Page 7 of 8
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this Sth day of January 2Ol9,I caused to be served a true
and correct copy of the foregoing document by the method indicated below and addressed to the
following:
Commission Secretary
Idaho Public Utilities Commission
472 W. Washington Street
P.O. Box 83720
Boise, ID 83720-0074
Caitlin E. O'Brien
Smith + Malek
601 E. Front Ave, Suite 304
Coeur d'Alene, ID 83814
Email : Caitlin@smithmalek. com
Mike Kennedy
President, Intermax Networks
7400 Mineral Drive, Suite 300
Coeur d'Alene, ID 83815
Email : mkennedy@intermaxteam. com
Eric an
U.S. Mail
Hand Delivered
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Email
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COEUR D'ALENE TRIBE'S PROTEST AND COMMENTS - Page 8 of 8