20190207Supplemental Comments.pdf

RICEIVED
;ii j:i FEB -7 pfr ?: t+?COEUR D' ALENE TRIBE
Office of Legal Counsel
850 A STREEET
P.O. BOX 408
PLUMMER, ID 83851
(:208) 686-1800 . Fax [phone]
February 7,2019
Via Hand Deliver:l
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-18-01
Dear Ms. Hanian:
Enclosed are an original and (7) seven copies of the Coeur d'Alene Tribe's Supplemental
Comments for filing in the above matter. Please conform the additional copy of the
Supplemental Comments 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.
Eric Van Orden
Office of Legal Counsel
Coeur d'Alene Tribe
tr
Eric Van Orden [ISB No. 47741
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
ELIGIBLE TELECOMMUNICATIONS
CARRIER
CASE NO. NEW.T.18-01
COEUR D'ALENE TRIBE
SUPPLEMENTAL COMMENTS
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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 these Supplemental Comments in response to
the Commission's "Amended Notice of Modified Procedure," Order No. 34237, released in the
above-referenced proceeding on January 29,2019.1 h support of these Supplemental
Comments, the Tribe states as follows:
A. A Crisis in the Provision of Lifeline Service
There is a crisis looming in Indian Country when it comes to the Digital Divide. The
major program designed to spur adoption of telecommunication and broadband services in Indian
Country - the Lifeline Program - is under attack by the Federal Communications Commission
I Order No.34237 set the date for filing additional comments in this proceeding as February 8,2019.
These Supplemental Comments therefore are timely filed.
COEUR D'ALENE TRIBE'S SUPPLEMENTAL COMMENTS - Page I of 7
("FCC"). The importance of Lifeline to Native Americans cannot be argued.2 Yet in its
December 1,2017 Order, the FCC eliminated o'Tier-4" support (equaling an additional $25 per
month per subscriber) from all but carriers serving Tribal lands through their own facilities.3
Late last week, the D.C. Circuit vacated the Fourth Report and Order and remanded "the
matter to the Commission for a new notice-and-comment-rulemaking proceeding."u What the
court found was that traditional carriers have left the market for providing Lifeline services
because they find them unprofitable and the compliance costs too high.
[T]he Commission's decision does not indicate consideration of facilities-based
providers' unwillingness to offer Tribal Lifeline services. Numerous commenters
explained that the major facilities-based providers - AT&T, T-Mobile, and
Verizon - have relinquished their Lifeline eligibility altogether, and despite
maintaining Lifeline eligibility, Sprint also does not offer any Tribal Lifeline
services. The statement of a dissenting Commission Member also makes clear the
Commission knew that the major facilities-based providers were uninterested in
providing Tribal Lifeline services yet failed to address the problem that would be
created as a result of changing its policy. 5
This conclusion was well supported by the record in the FCC proceeding, but was
ignored by the FCC. "The significant administrative burdens of being a Lifeline ETC coupled
2 See, e.g. Bridging the Digital Dividefor Low-Income Consumers: Fourth Report and Order,32FCC
Rcd 10475, fl 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).
3 Bridging the Digital Dividefor Low-Income Consumers, Lifeline and Link Up Reform and
Modernization, Telecommunications Carriers Eligiblefor Universal Service, Fourth Report and Ordeq
Order on Reconsideration, Memorandum Opinion and Order, Notice of Proposed Rulemaking, and Notice
of lnquiry, WC DocketNos. 17-287,11-42,A9-197, FCC 17-155,2017 WL 6015800 (rel. Dec. 1,2017)
(*Fourth Report and Ordef').
a National Ltfeline Association v. FCC,Nos. 18-1026, l8-1080, D.C. Circuit, issued February 1,2019,
Slip Op. atp.27 (attached hereto).
s Id. atp. 16 (internal footnotes omitted). See also id. atp.3 ("ln adopting the Tribal Facilities
Requirement, the Commission's decision evinces no consideration of the exodus of facilities-based
providers from the Tribal Lifeline program").
COEURD'ALENE TRIBE'S SUPPLEMENTAL COMMENTS - Page 2 of 7
with potential FCC enforcement actions" serve as a "powerful deterrent to participation" in the
Lifeline program by facilities-based providers."6 With the remand, the FCC has been given the
opportunity to provide the court with record evidence that Tier-4 support for non-facilities based
carriers is no longer necessary.
B. The Intermax ETC Petition
It is against this backdrop that this Commission must assess whether granting the instant
ETC petition for the four Census Blocks located on the Coeur d'Alene reservation is in the
public interest. Intermax seeks ETC status in 4l Census Blocks.T Four of those Census Blocks
(160099400005, 160559400001, 160559400002, and 160559400003 ("the CDA Census
Blocks")) or less than ten percent (10%), are on the Coeur d'Alene Reservation. Therefore, in
only l0 percent of Intermax's service area in ldaho would Native Americans be able to receive
the full $34.95 monthly support for Tribal Lifeline service. If the FCC revives its efforts to ban
Tier 4 support for carriers without facilities in those four Census Blocks,8 and Intermax chooses
to serve those Census Blocks through "resale of another carrier's facilities,"e members of the
6
^See Comments of AT&T in WC Docket 17 -287 at 6 &. note 20. See qlso Brief of Petitioner National
Lifeline Association in appeal I 8- I 026, pp. 9, 37 -38 (noting that a number of large facilities-based
carriers have filed petitions to relinquish their ETC status to provide Lifeline service, and that Verizon has
exited from the market in South Dakota and petitioner Crow Creek Sioux Tribe's reservation); Comments
of Assist Wireless in WC Docket 17-287 at 19-20; see also Comments of Boomerang Wireless at 13-14
(summarizing low and dwindling Lifeline subscribership among facilities-based carriers, and explaining
that'owith the exception of Sprint," the four nationwide wireless carriers "have not shown interest in
engaging in outreach to serve Lifeline eligible low-income subscribers, especially those on tribal lands").
7 See lntermax ETC Petition, Exhibit l.
8 National Lifeline Assoc. v. FCC, Slip Op. at I I (The FCC's 2017 Fourth Report and Order concluded
that "[f an ETC offers service using its own as well as others' facilities in its service area on rural Tribal
lands, it may only receive enhanced support for the customers it serves using its own last-mile facilities,"
quoting Fourth Report and Order,l26).
e lntermax ETC Petition, p. 5.
COEUR D'ALENE TRIBE'S SUPPLEMENTAL COMMENTS - Page 3 of 7
Coeur d'Alene Tribe would lose $25 per month in support, potentially making Intermax's service
unaffordable to Tribal members.
Nowhere in its original Petition before this Commission, however, did Intermax indicate
that it intended to offer Lifeline service. The Petition failed to make a separate showing that
Intermax has met the additional requirement for obtaining ETC designation for the purposes of
receiving Lifeline funding support.r0 Nor did Intermax mention how it would deal with its Tribal
Lifeline offerings, lr or whether it even intended to interface with any Tribes.12
Intermax's multiple attempts to rehabilitate a facially un-grantable petition lead the Tribe
question whether grant of the Petition, as to the CDA Census Blocks, is in the public interest.
Intermax's efforts in this regard apparently were not undertaken on its own accord, but only after
"tlre commission's request."l3 While seeking expedited consideration of its Petition before this
Commission,lntermax did not even reach out to the Tribe until December 3,2018, more than
three (3) months after it first learned it won funding in Auction 903 for the CDA Census
Blocks.la Its claim that it will, in fact, provide Lifeline service is contained in its Reply
Comments, which were not certified by an official of lntermax, and filed by counsel who, to the
best of our knowledge, is not licensed to practice law in Idaho or admitted pro hac vice for this
proceeding.
t0 See, e.g., Application of Boomerang Wireless, BWL-T-I6-01, pp. 6-7,pp.20-23 (fully explaining its
Lifeline service offerings to the ldaho PUC).
tt Id. atpp.23-30.
t2 Id.
13 Intermax Supplement, dated November 29,2018.
ra 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, 201 8. An ancillary issue be to determine whether the December 3, 201 8,
provided adequate notice to the Tribe.
COEUR D'ALENE TRIBE'S SUPPLEMENTAL COMMENTS - Page 4 of 7
Intermax claimed in those Reply Comments that it did not need to certiff that it would
provide Lifeline service, because it stated in its original Petition 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."l5 This raises the further question, which the
Commission must address, asto when Intermax plans on offering Lifeline service to the CDA
Census Blocks. What is a "reasonable time" to begin offering such services? Is that up to
Intermax to decide? What recourse does the Tribe have if Intermax does not begin to offer
Lifeline service to Tribal members within "a reasonable time?"
With the well-documented backdrop of carriers not wanting to offer Lifeline because of
the perceived regulatory burden and lack of profitability, and Intermax's failure to address
Lifeline until called out by the Tribe, the Tribe must question Intermax's sincerity and
commitment to providing affordable serve to the CDA Census Blocks. The Tribe therefore
reiterates its call for the Commission to hold a hearing on this Petition, as it applies to the CDA
Census Blocks.
C. Whether Intermax Will Adequately Seme The Coeur d'Alene Tribe is a
Ouestion for This Commission
In its Reply Comments, Intermax argues that to the extent that it has failed to adequately
engage the Coeur d'Alene govenrment or demonstrate that it will provide adequate service to the
Coeur d'Alene Reservation, the Tribe's recourse should be a complaint to the FCC, and not to
this Commission.l6 But this Commission's charter is to determine, in the first instance, whether
designation of a carrier as an ETC is in the public interest, and the petitioner carries the burden
r5 [ntermax Reply Comments, p.2.
t6 Id. atpp. 3-4. While these same Reply Comments claim that the FCC's Tribal consultation provisions
do not apply, it was Intermax, in its Supplemental Application, which invoked the Tribal consultation
provisions of 47 CFR $ 54.1004. See lntermax Supplemental Application,p.2.
COEUR D'ALENE TRIBE'S SUPPLEMENTAL COMMENTS - Page 5 of 7
of demonstating that its petition is in the public interest.rT In weighing whether a carrier has met
this burden, the Commission is to weigh:
the unique advantages and disadvantages of the competitor's seryice offering, any
commitments made regarding the quality of the telephone service provided by
competing providers, and the competitive ETC's ability to provide the supported
services throughout the designated service area within a reasonable time frame.l8
As to the CDA Census Blocks, the question of whether Interma;< has engaged with Tribal leaders
and will provide vital services to the reservation (including Enhanced Tribal Lifeline), is at the
core of this Commission's determination of the public interest, a burden Intermax has not yet
met. This Commission should not abdicate this core responsibility to the FCC, or shift the
burden from the carrier to the Tribe, which would be the case were the Tribe required to file a
complaint with the FCC. Instead, the Commission should require Intermax to meet its burden
under the standard above, which, the Tribe submits, can only be done through a hearing.
WHEREFORE, The Coeur d'Alene Tribe respectfully requests that the Commission hold
a hearing in this proceeding.
DATED this 7tr day of F
Eric Van Orden
Offrce of Legal Counsel, Coeur d'Alene Tribe
Attorneys for the Coeur d'Alene Tribe
17 See Idaho Commission Order No. 29841, pp. 3-4.
tB Id., quoting Clear Talk Order, Order No. 29541.
COEUR D'ALENE TRIBE'S SUPPLEMENTAL COMMENTS - Page 6 of 7
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 7e day of Februffiy, 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
Stephen E. Coran
Lerman Senter PLLC
2001L Street, NW, Suite 400
Washington, DC 20036
Email : scoran@ lermansenter.com
U.S. Mail-)Z- Hand Delivered---zqr-Ovemight Mail
Facsimile
Email
\.. U.S. Mail---t-- Hand Delivered
-Overnight
Mail
Facsimile
Mike Kennedy
President, lntermax Networks
7400 Mineral Drive, Suite 300
Coeur d'Alene, ID 83815
Email: mkennedy@intermaxteam. com
Eric Van Orden
V u.s. uuit---7+ Hand Delivered
Overnight Mail
Facsimile
Email
COET R D'ALENE TRIBE'S SUPPLEMENTAL COMMENTS - Page 7 of 7