20050808reconsideration order no 29843.pdf

Office of the Secretary
Service Date
August 8 , 2005
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION OF
TAMARACK VIDEO & TELECOM LLC FOR A
CERTIFICATE OF PUBLIC CONVENIENCE
AND NECESSITY TO PROVIDE F ACILITIES-
BASED LOCAL EXCHANGE AND TOLL
SERVICES WITHIN THE ST ATE OF IDAHO.
CASE NO. TAM-O5-
ORDER NO. 29843
On June 24, 2005, the Commission issued Order No. 29808 granting Tamarack Video
Telecom LLC (Tamarack Telecom) a Certificate of Public Convenience and Necessity
(CPCN) to provide facilities-based local exchange telecommunications services in the State of
Idaho. On July 13 , 2005, Matthew Castrigno filed a timely Petition for Reconsideration or, in
the Alternative, Petition for Order Requiring Provision of Telecommunications Services. Staff
filed an Answer to the Alternative Petition on July 20, 2005 arguing that the Petition for
Reconsideration should be denied but that the Commission should open a separate docket to
consider the Alternative Petition for telecommunications services from the incumbent local
exchange carrier (ILEC), Frontier Communications of Idaho. On July 29 , 2005 , Mr. Castrigno
filed a Reply to Staffs Answer stating that he had no objection to Staffs recommendation. The
Commission has determined to deny the Petition for Reconsideration and open a separate docket
to consider the Alternative Petition for telecommunications service from Frontier.
BACKGROUND
On March 15, 2005 , Tamarack Telecom filed an Application for a CPCN to provide
facilities-based local exchange telecommunications services. Tamarack filed an Amended
Application on April 15, 2005. In the Application, Tamarack Telecom requested the authority to
offer facilities-based local exchange telecommunications services in Adams County and Valley
County. However, Tamarack Telecom, wholly-owned by Tamarack Resort LLP, plans to offer
telecommunications services exclusively to residential and business customers within the
Tamarack Resort.
On May 12, 2005 , the Commission solicited comments regarding the Company
Application. See Order No. 29783. Comments were received from the Commission Staff, Mr.
Castrigno, and another private citizen.
Tamarack Telecom a CPCN.
Only Mr. Castrigno s comments opposed granting
ORDER NO. 29843
After reviewing the Application and comments, the Commission approved the
Application finding that it complied with applicable law Idaho Code 9 62-622 IDAP A
31.01.01.111 and 112, and Procedural Order No. 26665. Order No. 29808 at 3. In approving the
Application, the Commission noted that "there is no actual facilities-based competition in local
telephone service within the Tamarack Resort" and "while the local service offering appears to
be at very high rates, (the Commission has) no ratemaking jurisdiction over (Tamarack
Telecom), a competitive carrier under federal and state telecommunications law.Id.
THE PETITION
In the Petition for Reconsideration, Mr. Castrigno argued that the Commission should
reconsider the CPCN Order, because the Tamarack Telecom service area is located within
Frontier s service area and, according to Mr. Castrigno, Tamarack Telecom does not provide
adequate telecommunications service. Mr. Castrigno finds Tamarack Telecom service
inadequate, because: (1) it requires the purchase of special phones at "exorbitant" cost; (2) does
not provide 911 service; (3) is based on fiber optic and not copper cable; and (4) "does not
possess the functionality offered by the vast majority of telephone utilities." Petition at 2.
In the Alternative Petition, Mr. Castrigno requests that the Commission order
Frontier, the ILEC, to provide basic local exchange service to customers located in Tamarack
pursuant to Idaho Code 9 61-508. Petition at 3. The Petitioner also noted that, in addition to his
comments filed in the instant proceeding, the Commission had received other complaints or
requests from Tamarack residents desiring Frontier s service. Petition at 3-
In response to the Alternative Petition, the Commission Staff filed an Answer
recommending that the Commission deny the Petition for Reconsideration and open a separate
docket to consider the Alternative Petition for telecommunications service. In essence, Staff
argued that the Petition for Reconsideration should be denied for failure to meet the
Commission s procedural Rule 331.01 and because the Petition for Reconsideration failed to
offer any new information for the Commission to consider in its decision. Answer at 1. As
noted above, Mr. Castrigno filed a Reply to Staffs Answer stating, "Mr. Castrigno is satisfied
that opening a separate docket would be an appropriate means of proceeding forward and has no
objection to Staffs overall recommendation." Reply at 2.
ORDER NO. 29843
CO MMISSI ON FIND IN GS
Based upon our review of the Petition for Reconsideration, the Commission finds
that the Petition fails to meet the standard for reconsideration under Rule 331.01. Under Rule
331.01 , a Petition for Reconsideration "must set forth specifically the ground or grounds why the
petitioner contends that the order or any issue decided in the order is unreasonable , unlawful
erroneous, or not in conformity with the law." IDAP A 31.01.01.331.01. Further, the Petition for
Reconsideration must contain "a statement of the nature or quantity of the evidence or argument
the petitioner will offer if reconsideration is granted.Id.; Idaho Code 9 61-626. The Petition
fails to meet these requirements. The Petition does not describe how the Commission s Order
was unreasonable, unlawful, or erroneous; nor does the Petition explain what evidence or
argument will be presented if reconsideration is granted. In addition, after reviewing both the
Petition for Reconsideration and the record in this case, the Commission finds that the Petition
fails to raise any facts or other issues not known to the Commission at the time of its decision.
Therefore, the Petition for Reconsideration is denied.
The Commission further finds that it does not have enough information to make a
decision on the merits of the Alternative Petition for Order Requiring Provision of
Telecommunications Services. Nonetheless, the Commission does find that the Alternative
Petition presents issues worthy of investigation. Therefore, the Commission on its own motion
will open a separate docket to consider the issues raised in the Alternative Petition.
As the Petitioner described, the Commission has received a number of complaints
from individuals in the Tamarack Resort who were unable to obtain telephone service from
Frontier upon request. Further, as the Commission noted in the CPCN Order, Frontier does not
have the facilities necessary to serve customers in the Tamarack Resort. Order No. 29808 at 3.
The Commission will open a separate case to determine whether Frontier should be required to
provide telecommunications service to requesting customers in the Tamarack Resort.
ORDER
IT IS HEREBY ORDERED that Matthew Castrigno s Petition for Reconsideration is
denied.
IT IS FURTHER ORDERED that the Commission on its own motion opens a
separate docket to consider Mr. Castrigno s Alternative Petition for Order Requiring the
Provision of Telecommunications Services.
ORDER NO. 29843
THIS IS A FINAL ORDER DENYING RECONSIDERATION.Any party
aggrieved by this Order or other final or interlocutory Orders previously issued in this Case No.
TAM-05-1 may appeal to the Supreme Court of Idaho pursuant to the Public Utilities Law and
the Idaho Appellate Rules. See Idaho Code 9 61-627.
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this "
day of August 2005.
AUL KJEL~ANDER, PRESIDENT
~,
ARSHA H. SMITH, COMMISSIONER
Out of the Office on this Date
DENNIS S. HANSEN, COMMISSIONER
ATTEST:
O:T AM-05-kdp3
ORDER NO. 29843