20120110CTC Amicus Curiae.pdf

MOllY OllEARY
ISB #4996
Richardson & O'Leary, PLLC
515 North 27th
Boise, Idaho 83702
208.938.7900
CYNTHIA A. MELLILO
ISB # 5819
Cynthia A. Melilo, PLLC
8385 W. Emerald Street
Boise, Idaho 83704
208.577.5747
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! Supreme GõU-=:ëõ¡¡rtõ! Appeals
: ..~_ Entered on AlB by: -----.--------
2DI? JM'l 10 Pi.j 3: 41
IN THE SUPREME COURT OF THE STATE OF IDAHO
IN THE MATTER OF THE APPLICATION
OF TRACFONE WIRELESS, INC. FOR
DESIGNATION AS AN ELIGIBLE
TELECOMMUNICATIONS CARRIER
TRACFONE WIRELESS, INC.,
APPELLANT
V.
IDAHO PUBLIC UTILITIES COMMISSION,
RESPONDENT
)
j Case No. 39331
j VERIFIED APPLICATION TO APPEAR AS
) AMICUS CURIAE PURSUANT TO IDAHO
) APPELLATE RULE 8
)
)
j
)
)
)
)
COME NOW, CTC Telecom, Inc., a duly organized Idaho corporation ("CTC1 and
the Idaho Telecom Allance, an unincorporated association of rural Idaho telecommunications
carriers ("IT A") and, by and through undersigned counsel, move this Court to allow
Petitioners to appear and file an amicus brief in the above-captioned action.
i.
BACKGROUND
On October 28, 2011, TracFone Wireless, Inc. ("Appellant1 filed a Notice of Appeal
VERIFIED APPLICATION TO APPEAR AS AMICI CURIAE - 1
to this Court of the Idaho Public Utilties Commission's decision in Case No.TFW-T-09-01.
In particular, TracFone is appealing the Commission's decision in Order No. 32358, dated
September 19, 2011, arguing that:
1. The Idaho Public Utilty Commission ("I
PUC' or "Commission'1 erred by denying
Appellants Petition for Designation as an Eligible Telecommunications Carrier due to
non-payment of fees governed by Section 56-901, et seq., Idaho Code; and
2. The IPUC erred by denying Appellants Petition for Designation as an Eligible
Telecommunications Carrier due to non-payment of fees required by Secion 31-401,
et seq, Idaho Code.
Il.
LEGAL STANDARD
Idaho Appellate Rule 8 provides that the Court may allow for appearance as amicus
curiae in a proceeding upon written application stating the interest of the applicants in the
proceeding, the name of the part in whose support the amicus curiae requests to appear,
and whether leave is sought to fie an amicus curiae brief or participate in oral argument, or
both.
nl.
ARGUMENT
crc Telecom and the IT A should be allowed to appear as
amid curiae because they may be adversely affeced by the
outcome of the proceeding.
CTC Telecom, Inc., d/b/a CTC Wireless, is a wireless Eligible Telecommunications Carrier
(ETC) in rural areas of Idaho. As a wireless ETC in Idaho, CTC is subject to Sections 56-901,
et seq, and 31-4801, et seq, Idaho Code, and actively participated in the IPUC proceeding that
VERIFIED APPLlCA TION TO APPEAR AS AMICI CURIAE - 2
TracFone is now challenging before this Court. IT A is a state telephone association, and its
members include both commercial companies and cooperatives. The fourteen (14) members
of ITA provide basic and advanced telecommunications services in rural Idaho. All of the
members are rural telephone companies as defined in 47 U.S.C § 153(37), and all the
members (or affiliates of the members) are designated ETCs in Idaho.
An applicant such as TracFone that is seeking ETC designation in areas already served
by a rural telephone company has the burden of demonstrating that the public interest
would be served by granting its ETC Application.IPUC Order No. 29841 at 8, August 4,
2005; see also 47 U.S.c. § 214(e)(2). "Merely asserting that granting the application wil lead
to increased competition in a particular service area is not enough, by itself, to warrant ETC
designation in rural areas." IPUC Order No. 30867 at 3, July 24, 2009; see also IPUC Order
No. 29841 at 4.
As Intervenors in the proceeding below, CTC and the ITA have steadfastly argued,
among other reasons, that TracFone's failure to collect and remit the statutorily mandated
fees at issue in this matter is contrary to the public interest and, therefore, designation of
TracFone as an ETC in the rural portions of Idaho served by CTC and other ITA members
should be denied. CTC's and the ITA members' customers who are required to pay into the
statutory funds are, arguably, paying more than their fair share because of TracFone's refusal
to collect and remit the fees from its customers. In addition, TracFone's failure to collect the
fees from its customers artificially reduces the price it charges for its service as compared to
other wireless ETC service providers such as CTC and other ITA members.
VERIFIED APPLICATION TO APPEAR AS AMICI CURIAE - 3
IV.
CONCLUSION
The ITA and CTC are entities who have a substantial interest in this proceeding and
hereby respectfully request this Court grant their Application to Appear as Amici Curiae on
behalf of the Idaho Public Utilties Commission, fie a brief in support of the Commission's
Order No. 32358, and participate in
oral argument.
DATED this 4th day of January, 2012.
By:
By:
FOR
AND O'LEARY, PLLC
eTC Telecom, Inc.
VERIFIED APPLlCA TION TO APPEAR AS AMICI CURIAE - 4
VERI FICA nON
STATE OF IDAHO )
) 5S.County of Washington )
DANA LYNNE MUNDEN
Notary Public
Stte of Idaho
- ..~ ,... -- ..
STATE OF IDAHO )
) ss.County of Washington )
Jerrold D. Piper, President of the Idaho Telecom Alliance, being first duly sworn,
deposes and says that he has read the within and foregoing Verified application to Appear as
Amicus Curiae Pursuant to Idaho Appellate Rule 8 and believes the same to be true and
correct to the best of his knowledge and belief.
DATED this¿f day of December, 2011.
_/~.,-:/7 0:'/ j (/..).:~;~ zL ß-
,Arrold D. Piper
President, the Idaho Telecom Allance
DANA LYNNE MUNDEN
Notary Public
State of Idaho
1'1. . '-~'~ f Ci?!tIJ1 it~j1,.' J¿¿I'I',/ ¿f1/LrtLL.iL:/ i .t-C.- t/ ¡
VERIFIED APPLICATION TO APPEAR AS AMICUS CURIAE - J
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 9th day of january, 2012, a true and correct copy of
the within and foregoing VERIFIED APPLICATION TO APPEAR AS AMICUS
CURIAE PURSUANT TO IDAHO APPELLATE RULE 8 was served as follows:
Jean Jewell
Commission Secretary
Idaho Public Utilties Commission
472 West Washington
Boise, Idaho 83702
jean.jewellt!uc.idao.gov
(Xl US. Mail
( L Hand Delivery
( L Federal Express
( L Fax
(Xl Electronic Mail
Neil Price
Deputy Attorney General
Idaho Public Utilties Commission
472 West Washington
Boise, Idaho 83702
neiL.pricet!uc.idaho.gov
(Xl US. Mail
( L Hand Delivery
( L Federal Express
( L Fax
(Xl Electronic Mail
Mitchell F. Brecher
Debra McGuire Mercer
GREENBERG TRAURIG, LLP
2101 L Street, NW
Suite 1000
Washington, D.C. 20037
brecherm(ßgtlaw.com
mercerdm(ßgtlaw.com
(Xl US. Mail
( L Hand Delivery
( L Federal Express
( L Fax
(Xl Electronic Mail
Don Howell
Deputy Attorney General
Idaho Public Utilties Commission
472 West Washington
Boise, ID 83702
Don.howell (g puc.idaho.gov
(Xl US. Mail
( L Hand Delivery
( L Federal Express
( L Fax
(Xl Electronic Mail
Dean j. Miler
McDevitt & Miler LLP
420 West Bannock
Boise, ID 83702
joe(g mcdevitt-miler .com
( l U.S. Mail
( L Hand Delivery
( L Federal Express
( L Fax
(Xl Electronic Mail