20050720Answer to reconsideration.pdf

KIRA DALE PFISTERER
DEPUTY ATTORNEY GENERAL
IDAHO PUBLIC UTILITIES COMMISSION
PO BOX 83720
BOISE, IDAHO 83720-0074
[phone]
IDAHO BAR NO. 6571
Street Address for Express Mail:
472 W. WASHINGTON
BOISE, ID 83702-5983
Attorney for the Commission Staff
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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 LOCAL
EXCHANGE AND TOLL SERVICES WITHINTHE STATE OF IDAHO.
CASE NO. TAM-O5-
STAFF'S ANSWER TO
MATTHEW CASTRIGNO'
PETITION FOR
RECONSIDERATION OR, IN
THE ALTERNATIVE, PETITION
FOR ORDER REQUIRING
PROVISION OF
TELECOMMUNICATIONS
SERVICES
INTRO D CTI ON
Pursuant to the Commission s Procedural Rule 331., the Staff of the Idaho Public
Utilities Commission, by and through its Attorney of record, Kira Dale Pfisterer Deputy
Attorney General, respectfully submits this Answer to Matthew Castrigno' s Petition for
Reconsideration of Commission Order No. 29808 granting Tamarack Video & Telecom LLC
(Tamarack Telecom) a Certificate of Public Convenience and Necessity (CPCN) to provide
telecommunications service. The Commission should deny the Petition for Reconsideration
because it fails to meet the standards for reconsideration under Rule 331.01 and does not present
any new information for the Commission to consider. In addition, the Commission should treat
the alternative Petition for an Order requiring the provision of telecommunications service in a
separate docket.
STAFF'S ANSWER TO
PETITION FOR RECONSIDERATION
BACKGROUND
On March 15, 2005 , Tamarack Telecom filed an Application for a CPCN to provide
local exchange and toll services within the State of Idaho. The Company filed an Amended
Application for Certification on April 15, 2005.
In the CPCN Application, Tamarack Telecom sought authority to provide facilities-
based, local exchange and resold, interexchange telecommunications services in Adams and
Valley Counties. Application at 1-2. Tamarack Telecom is wholly-owned by Tamarack Resort
LLC and provides telecommunications services exclusively to residential and commercial
customers at the Tamarack Resort in Valley County, Idaho. Id. at 2-3. The Application states
that Tamarack Telecom s proposed service area is within the service territory of incumbent local
exchange carrier (ILEC), Citizens Telecommunications Company of Idaho, Inc. dba Frontier
Communications of Idaho ("Frontier
).
Id. at 3.
On May 12, 2005, the Commission issued the Notice of Application and Notice of
Modified Procedure. Order No. 29783. In response, the Commission Staff and two private
citizens, including Mr. Castrigno, filed comments.One private citizen filed comments
supporting the Application and Mr. Castrigno filed comments in opposition to both the CPCN
and the Commission s decision to proceed under Modified Procedure. As noted in the
Commission s Order No. 29808, Mr. Castrigno s comments expressed concerns regarding: the
Company offering local exchange service prior to obtaining a license; the characterization of the
Company as a competitive carrier; the characterization of the services provided as Voice Over
Internet Protocol (VoIP); the inability of the Company to provide precise location information
through its 911 service; and the required use of a proprietary phone. Order No. 29808 at 2.
After reviewing the Application and the comments, the Commission on June 24
2005 issued Order No. 29808, granting Tamarack Telecom a CPCN. While the Commission was
sympathetic to Mr. Castrigno s concerns, specifically the relatively high cost of basic local
telephone service, it determined that the Application met the Commission s requirements for a
CPCN. Id. at 3. In addition, the Commission specifically noted that Tamarack Telecom
proposed service area is within Frontier s service area, but Frontier is currently unable to provide
telecommunications services to any potential customer within the Tamarack Resort, because it
lacks the facilities to do so. Id. at 3.
STAFF'S ANSWER TO
PETITION FOR RECONSIDERATION
On July 13 , 2005, Mr. Castrigno filed a timely Petition for Reconsideration of the
Order. Mr. Castrigno argues that the Commission should reconsider the Order, because the
Tamarack Telecom service area is located within Frontier s service area and Tamarack Telecom
does not provide adequate telecommunications service. Mr. Castrigno finds Tamarack
Telecom s service inadequate, because: (1) it requires the purchase of special phones; (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.
ARGUMENT
The Commission should deny the Petition for Reconsideration of its decision to grant
Tamarack Telecom a CPCN. The Order rests on sound analysis of the applicable law and
pertinent facts, and Petitioner fails to demonstrate otherwise. Nonetheless, Petitioner
alternative Petition for an Order requiring Frontier to provide telecommunications service should
be considered in a separate docket.
A. The Commission Should Deny the Petition, Because It Fails to Meet the
Commission s Standards and Fails to Provide the Commission With Any
New Information to Consider.
The two basic reasons Mr. Castrigno seeks reconsideration of the Order are that
Tamarack Telecom s service offering is inadequate and its service area is located within
Frontier s service area. These reasons are not sufficient to meet the standard set forth in
Procedural Rule 331.01 , IDAP A 31.01.01.331.01. Further, the Commission was aware of all of
the issues surrounding Tamarack's service offering and described by the Petitioner when it
granted Tamarack Telecom a CPCN.
1. The Petition Fails to Meet the Commission s Standards for Reconsideration.
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
~ 61-626.
Mr. Castrigno s Petition fails to meet these requirements. The Petition does not
describe how the Commission s Order was unreasonable , unlawful, or erroneous; nor does the
STAFF'S ANSWER TO
PETITION FOR RECONSIDERATION
Petition explain what evidence or argument will be presented if reconsideration is granted.
Instead, the Petition focuses on Tamarack Telecom s service offering and the fact that Tamarack
Telecom s service territory is within Frontier s service territory. The Commission was aware of
these issues when it decided to grant Tamarack Telecom a CPCN.
2. The Petition for Reconsideration Does Not Contain Any Facts the Commission
Failed to Consider When Deciding to Grant Tamarack Telecom a CPCN.
The Commission applied the applicable legal standards when considering Tamarack
Telecom s CPCN Application and considered all of the pertinent facts Mr. Castrigno describes in
its Petition for Reconsideration. The Petition does not offer the Commission anything new to
consider.
Pursuant to Idaho Code ~~ 61-526 through -528, the Commission is vested with the
authority to grant CPCN's to public utilities operating in Idaho. Commission Rules 111 and 112
outline the data a public utility must include in an application for a CPCN and Procedural Order
No. 26665 further clarifies the information necessary in order for the Commission to determine if
a CPCN should be issued. In brief, in order to be issued a CPCN, a public utility must provide
the following information: (1) name, address, and form of business; (2) the date on which the
applicant proposes to begin construction or anticipates that it will provide service, including a
written description of customer classes and services proposed to be offered; (3) the proposed
service territory; (4) certain financial information; (5) maps regarding the proposed service area;
(6) a proposed initial tariff and price sheets; (7) contact information; (8) interconnection
agreements, if any; (9) an agreement to comply with the Commission s Rules; and (10) an
escrow account with a bonded escrow agent if the company requires advanced deposits by its
customers. Order No. 26665. The Commission clearly applied these standards in its
consideration of Tamarack Telecom s CPCN Application. See Order No. 29808 at 2-
Mr. Castrigno argues that Tamarack Telecom service offering is inadequate
because: (1) it requires the purchase of special phones; (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. These issues are either irrelevant to the
CPCN decision-making process or were considered by the Commission in its decision.
STAFF'S ANSWER TO
PETITION FOR RECONSIDERATION
The Commission was aware that Tamarack Telecom required the purchase of special
phones and does not have E911 functionality. 1 The Commission did not consider the use of
special phones to be a material to the decision to grant the CPCN. Further, Valley County does
not have E911 functionality, so Tamarack Telecom s ability or inability to provide E911
functionality is of no import. The Commission did not specifically address the fact that
Tamarack Telecom s system is based on fiber optic as opposed to copper cable. However, this is
a difference without distinction for the purpose of considering a CPCN certificate.
Petitioner does not provide any explanation for its claim that Tamarack Telecom
service offering "does not possess the functionality offered by the vast majority of telephone
utilities." Tamarack Telecom now offers stand-alone, basic local telephone service, and that is
sufficient under the existing regulatory framework.
Finally, it is irrelevant that Tamarack Telecom s serVIce area is located within
Frontier s service territory. Under a previous version of Idaho Code ~ 61-615(1), an existing
CPCN represented an exclusive service area franchise. However, this State statute was repealed
in 1997, because it was effectively preempted by the federal Telecommunications Act of 1996.
1997 Idaho Sess. Laws Ch. 192, ~ 6. Pursuant to the federal Telecommunications Act of 1996
No State or local statute or regulation, or other State or local legal requirement, may prohibit or
have the effect of prohibiting the ability of any entity to provide any interstate or intrastate
telecommunications service." 47 U.C. ~ 253(a). The purpose behind this statute is to foster
competition in the telecommunications market.
Similarly, since 1997, the Commission has not regulated the prices of local exchange
carriers, such as Tamarack Telecom, that were not providing local exchange services on or
before February 8, 1996. Idaho Code ~ 62-622(2). The Commission s regulation of these
companies, deemed Title 62 companies, is extremely limited, as the law assumes that they offer a
competitive service offering. Another reflection of the assumption that there is competition in
the telecommunications marketplace is the recent Title 61 deregulation statute Idaho Code ~ 62-
615. Under Idaho Code ~ 62-615 , the incumbent carriers, such as Qwest, may now opt out of
Title 61 regulation.
In sum, even though the Petitioner is not enjoying the fruits of a competitive
marketplace with a plethora of service options at competitive prices, the law assumes that he will
I Tamarack Telecom in fact offers basic 911 service.
STAFF'S ANSWER TO
PETITION FOR RECONSIDERATION
be. The Commission was acting within this legal framework and implementing the laws set forth
by the Legislature when it considered the Tamarack Telecom Certificate. The Commission
applied the correct legal standard in a reasonable manner.
Reconsideration should be denied.
B. The Commission Should Open a Separate Docket to Consider Mr.
Castrigno s Petition for Order Requiring Provision of Telecommunications
Service from Frontier, a Non-Party to the CPCN Proceedings.
Therefore, the Petition for
As Mr. Castrigno is aware, Staff has already started an informal inquiry into the
possibility of Frontier providing service to Tamarack customers. Staff has contacted Frontier on
numerous occasions both during the process of investigating Tamarack'CPCN and as a
separate matter. Nonetheless, because Mr. Castrigno is making this formal request for service
from Frontier, a non-party in the instant proceeding, through a Petition for an Order requiring the
provision of telecommunications service.
Petitioner s request for service from the incumbent carrier is worthy of investigation;
however, this request is not related to the Commission s decision to grant Tamarack Telecom a
CPCN. The issues raised by a request for service will include the costs of providing such service
and a proper allocation of such costs. These issues are best handled in an independent docket
with a case number that reflects the true nature of the proceedings and the parties involved.
CONCLUSION
In sum, Staff does not believe that Mr. Castrigno s Petition for Reconsideration
provides any new information relevant to the Commission s decision to grant Tamarack Telecom
a CPCN. Nonetheless, Mr. Castrigno raises interesting questions regarding Frontier s potential
obligation to serve him, and other customers within the Tamarack Resort. Staff would like to
consider these issues separately from the Tamarack Application for a CPCN.
RESPECTFULL Y SUBMITTED this 20th day of July 2005.
f,/ ... .d7 (.V.
Kira Dale Pfisterer
' "
Deputy Attorney General
N:TAMTO501 kdp
STAFF'S ANSWER TO
PETITION FOR RECONSIDERATION
CERTIFICATE OF SERVICE
HEREBY CERTIFY THAT I HA VE THIS 20th DAY OF JULY 2005
SERVED THE FOREGOING STAFF'S ANSWER TO MATTHEW CASTRIGNO'
PETITION FOR RECONSIDERATION, IN CASE NO. TAM-05-, BY MAILING A
COpy THEREOF POSTAGE PREPAID, TO THE FOLLOWING:
SHELBY WEIMER
TAMARACK VIDEO & TELECOM LLC
SUITE
960 BROADWAY AVE
BOISE ID 83706
BRAD M. PURDY
ATTORNEY AT LAW
2019N. 17TH ST.
BOISE, ID 83702
MA TTHEW CASTRIGNO
3200 N GLEN STUART LANE
EAGLE, ID 83616
CONLEY E. WARD
GIVENS PURSLEY, LLP
601 W. BANNOCK ST.
PO BOX 2720
BOISE, ID 83701-2720
FRONTIER COMMUNICATIONS OF IDAHO
4 TRIAD CENTER, SUITE 200
SALT LAKE CITY, UT 84180
fou~
SECRETARY
CERTIFICATE OF SERVICE