20120214Joint Stipulated Motion to Suspend Appeal.pdf

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DONALD L. HOWELL, II (ISB 3366)
D. NEIL PRICE (ISB 6864)
DEPUTY ATTORNEY GENERAL
IDAHO PUBLIC UTILITIES COMMISSION
PO BOX 83720
BOISE, IDAHO 83720-0074
[phone]
E-mail: don.howellW2puc.idaho.gov
neil.priceW2puc.idaho.gov
REceiVED
2012 FEB 1 4 AM 10: lt6
IDAHO PU8LiC
UTILITIES COMMiSSION
Attorneys for the Respondent on Appeal
Idaho Public Utilties Commission
IN THE SUPREME COURT OF THE STATE OF IDAHO
91¡J-T--I/;ò I
TRACFONE WIRELESS, INC., )
) SUPREME COURT
Petitioner-Appellant, ) DOCKET NO. 39331-2011
)v. )
)
IDAHO PUBLIC UTILITIES COMMISSION, )
) JOINT STIPULATED MOTION
Respondent on Appeal, ) TO SUSPEND APPEAL
)
)
COMES NOW the Idaho Public Utilties Commission ("PUC") and TracFone
Wireless, Inc. ("TracFone") (collectively referred to as the "Paries") through their respective
attorneys of record and request that the Cour suspend the appeal in this matter pursuant to Idaho
Appellate Rule (LA.R.) 13.2. As outlined in greater detail below, the Paries maintain there is
good cause to suspend the appeal pending the PUC's ruling on a Settlement Stipulation that, if
approved, would resolve the appeal in this case. i
i On Febru 2, 2012, the Cour granted the Verified Application of CTC Telecom, Inc. and the Idaho Telecom
Allance to Appear as Amicus Curiae.
JOINT STIPULATED MOTION
TO SUSPEND APPEAL 1
e e
MOTION TO SUSPEND APPEAL
In this Motion, the Paries are requesting that the Cour temporarily suspend the
appeal until such time as the PUC completes its review of the Settlement Stipulation and other
issues in PUC Case No. TFW-T-09-0L. If the PUC approves the Settlement Stipulation and
makes the requested finding, TracFone's Application for an ETC will be resolved and the appeal
wil be unecessar. Suspending the appeal will also conserve judicial resources and allow the
PUC sufficient time to complete its review.
In considering a suspension on appeal, the Paries must disclose the duration of the
requested suspension. I.A.R. 13.2. The Paries request that the appeal be suspended for
approximately 100 days, or until May 30, 2012. The paries maintain that this amount of time
wil provide suffcient opportty for the PUC to complete its review and issue the necessar
final Order in the curent ETC case.
BRIEF IN SUPPORT OF SUSPENSION
On September 13, 2011, the PUC issued Order No. 32358, Final Order on
,Reconsideration ("Order"). The Order reaffirmed the PUC's previous determination in Order
No. 32301 that TracFone is responsible for payment of fees required by the Idaho Telephone
Assistance Program Act ("ITSAP"). With respect to payment of fees required by the Idaho
Emergency Communications Act ("IECA), the Order provided that TracFone could either "remit
the applicable fees, or seek an official ruling from the IECC (Idaho Emergency Communications
Commission), or another tribunal with relevant jursdiction, as to whether the fees applied. . . ."
(Order at pp. 11-12; emphasis added).
On October 28,2011, TracFone fied a Notice of Appeal alleging that the PUC erred
by denying TracFone's Application for Designation as an Eligible Telecommunications Carrer
JOINT STIPULATED MOTION
TO SUSPEND APPEAL 2
e e
("ETC") due to non-payment of fees required by ITSAP, Idaho Code § 56-901, et seq., and the
IECA, Idaho Code § 31-4801, et seq. Subsequent to the filing of TracFone's appeal, PUC Staff
and TracFone engaged in negotiations to determine whether the Paries could reach a reasonable
compromise that would comport with the PUC's'Order.
Pursuat to these negotiations, PUC Staf and TracFone agreed to enter into a
Stipulated Settement Agreement wherein PUC Staff would support TracFone's certification as
an ETC in exchange for TracFone's commitment to: (1) remit ITSAP fees retroactive to Januar
1, 2011; and (2) seek a declaratory judgment from an Idaho state cour regarding the applicabilty
ofthe IECA fees.
;
PRAYER
In sumar, the Paries respectfuly request that the Cour suspend this appeal for the
reasons stated above. The Paries fuer maintain there is good cause for the Cour to suspend
the appeal for approximately 100 days, or until May 30, 2012. Therefore, the Paries respectfully
request that the Cour enter an Order consistent with the foregoing and suspending the above
named appeaL.
Respectfuly submitted this \~ ~ay of Febru 2012.
McDEVITT & MILLER LLP IDAHO PUBLIC UTILITIES COMMISSION
~\il ~
ean J. Miler (ISB No. 1968)
Attorney for TracFone Wireless Inc.
¿2~. .D. Neil Price (ISB No. 6864)
Deputy Attorney General
Attorney for Idaho Public Utilities Commission
O:Supreme Court Cases_TFW- T-09-01_Motion to Suspend_np
JOINT STIPULATED MOTION
TO SUSPEND APPEAL 3
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY THAT I HAVE THIS i,;li"-DAY OF FEBRUARY 2012,
SERVED THE FOREGOING STIPULATED MOTION TO SUSPEND APPEAL, IN
SUPREME COURT DOCKET NO. 39331-2011, BY E-MAILING A COPY THEREOF TO
THE FOLLOWING:
DEAN J. MILLER, ESQ.
MCDEVITT & MILLER LLP
420 W. BANOCK ST.
PO BOX 2564-83701
BOISE, ID 83702
E-MAIL: joe(ßmcdevitt-miler.com
MOLLY O'LEARY, ESQ.
RICHARSON & O'LEARY, PLLC
PO BOX 7218
BOISE, ID 83707
E-MAIL: molly(ßrichardsonandolear.com
JOINT STIPULATED MOTION
TO SUSPEND APPEAL
MITCHELL F. BRECHER, ESQ.
GREENBERG TRAURIG, LLP
2101 L. STREET, NW, SUITE 1000
WASHINGTON, D.C. 20037
E-MAIL: brecherm(ßgtlaw.com
CYNTHIA A. MELILLO, ESQ.
8385 W. EMERALD ST.
BOISE, ID 83704
E-MAIL: cam(ßcamlawidaho.com
BY:
Secretar
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