20100520Motion in Opposition.pdf

II Greenberg Traurig
2010 HAY 20 AM 9: II
Debra McGuire Mercer
Tel [phone]
Fax [phone]
mercerdm(§gtlaw.com
May 19,2010
VIA OVERNIGHT DELIVERY
Jean Jewell
Commission Secretary
Idaho Public Utilities Commission
472 West Washington
Boise, Idaho 83702
Re: In the Matter of the Application of TracFone Wireless Inc. for Designation as an
Eligible Telecommunications Carer, Case No. TFW-T-09-01
Dear Ms. Jewell:
Enclosed please find the original and seven copies of the Motion in Opposition of
TracFone Wireless, Inc. to Petitions to Intervene of CTC Telecom, Inc. dba Snake River PSC
and Idaho Telecom Allance. On May 19, 2010, the Motion in Opposition was sent to you by
electronic maiL. Please contact me if you have any questions about this submission.
Sincerely,~eu
Debra McGuire Mercer
Counsel for TracFone Wireless, Inc.
Enclosures
GREENBERG TRAURIG, LLP . ATTORNEYS AT LAW. WWW.GTLAW.COM
2101 L Street, NW. . Suite 1000 . Washington, D.C. 20037 . Tel 202.331.100 . Fax 202.331.101
Mitchell F. Brecher
Debra McGuire Mercer
GREENBERG TRAURIG, LLP
2101 L Street, NW
Suite 1000
Washington, D.C. 20037
brecherm(igtlaw.com
mercerdm(igtlaw.com
Telephone: [phone]
Facsimile: [phone]
RECE en\._"'" L..;
29m MAY 20 AM 9: 11
lD~A¡'".iC)11"¡lITt:s'., ii ,",v
Counsel for TracFone Wireless, Inc.
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION
OF TRACFONE WIRELESS, INC. FOR
DESIGNATION AS AN ELIGIBLE
TELECOMMUNICATIONS CARRER.
)
) CASE NO. TFW-T-09-01
)
) MOTION IN OPPOSITION OF
) TRACFONE WIRELESS, INC.
) TO PETITIONS TO
) INTERVENE OF CTC
) TELECOM, INC. DBA SNAKE
) RIVER PCS AND IDAHO
) TELECOM ALLIANCE
Pursuant to IDAPA 31.01.01.075, TracFone Wireless, Inc. ("TracFone") fies this motion
in opposition to the motions to intervene out of time and petitions to intervene of CTC Telecom,
Inc. dba Snake River PCS ("CTC Telecom") and Idaho Telecom Alliance ("ITA") (collectively,
"petitioners"). i CTC Telecom and ITA filed identical petitions in which each seeks leave to
appear and paricipate as a party in this case. CTC Telecom and ITA's petitions disregard the
Commission's orders establishing the structure of this proceeding and provide no legal basis for
CTC Telecom and ITA to paricipate as intervenors in this proceeding.
i ITA did not serve TracFone with a copy ofITA's petition to intervene.
MOTION IN OPPOSITION OF TRACFONE WIRELESS, INC.
TO PETITIONS TO INTERVENE MAY 19, 2010
On March 1, 2010, TracFone fied an Amended Application for designation as an
Eligible Telecommunications Carrier ("ETC") with the Commission, addressing certain
deficiencies in a previously-filed application. On March 18, 2010, the Commission issued a
Notice of Amended Application and Notice of Modified Procedure in which it described
TracFone's ETC Application and the terms of TracFone proposed Lifeline service and disclosed
its determination that "the public interest may not require a formal hearing in this matter and wil
proceed under Modified Procedure pursuant to Rules 201 through 204 of the Idaho Public
Utilties Commission's Rules." The March 18,2010 Notice further stated: "any person desiring
to state a position on this Amended Application may fie a written comment in support or
opposition with the Commission within sixty (60) days from the service date of this Notice. The
comment must contain a statement of reasons supporting the comment." Thus, pursuant to the
March 18,2010 Notice, written comments regarding TracFone's Amended Application were due
no later than May 17,2010. The Commission subsequently extended the comment date to May
24,2010.1 As of the date of this motion, no comments have been fied.
CTC Telecom and ITA inappropriately attempt to petition for intervention as a pary to
this proceeding. Commission Rule 31.0101.073 provides that petitions to intervene must be fied
at least foureen (14) days before the date set for hearing or prehearing conference. As noted in
the March 18, 2010 Notice, this matter has not been set for hearing. Rather, the Commission
adopted a modified procedure whereby any person may fie a comment in support or opposition
with a statement of reasons supporting the comment. As such, petitions to intervene are not
contemplated in this proceeding. CTC Telecom and ITA may choose to fie comments with the
2 See Order No. 31082, May 12,2010.
2
MOTION IN OPPOSITION OF TRACFONE WIRELESS, INC.
TO PETITIONS TO INTERVENE MAY 19, 2010
Commission on or before May 24, 2010. Neither CTC Telecom nor ITA have provided any
reason as to why they are unable to file comments by that date.
Furhermore, CTC Telecom and ITA fail to assert that they are paries in interest
suffcient to confer stading on them or the existence of any valid basis for their petitions to
intervene. CTC Telecom and IT A simply claim without any explanation "a direct and
substantial interest in this proceeding in that it does not believe that designation of TracFone as
an ETC is in the public interest.,,3 However, neither petitioner states any reason for the opinion
that grant of TracFone's application would not be in the public interest. Both petitioners also
incorrectly assert that "(w)ithout the opportunity to intervene herein, .... (they) would be without
any means of participation in this proceeding which may have a material impact on (them) ... ."
That assertion disregards the Commission's modified procedure established for this matter,
which specifically allows for any person, including CTC Telecom and ITA, to comment
regarding TracFone's Amended Application.
CTC Telecom and ITA request the Commission to extend the comment period at least 45
days following grant of their petitions to intervene to allow them to "review the record and
supporting documentation, if any, and to propound appropriate discovery.,,4 The petitioners'
request ignores the procedural status of this proceeding. Under the modified procedure ordered
by the Commission, any person, including CTC Telecom and ITA, may fie a comment within
the deadline set by the Commission and if any comments are fied within the deadlines, "the
Commission wil consider them and may set a hearng or may decide the matter and issue its
3 CTC Telecom Petition to Intervene, at 2; ITA Petition to Intervene, at 2.
4 CTC Telecom Petition to Intervene, at 3; ITA Petition to Intervene, at 3.
3
MOTION IN OPPOSITION OF TRACFONE WIRELESS, INC.
TO PETITIONS TO INTERVENE MAY 19, 2010
order on the basis of the written positions before it."s The Commission's modified procedure
does not contemplate discovery at this time. Under the modified procedure, the Commission will
determine whether there wil be a hearing or discovery after it considers any timely-filed
comments.
CTC Telecom and ITA unjustifiably and inexplicably assert that grant of their petitions
will not unduly broaden the issues nor prejudice any pary. The petitioners canot assure the
Commission that their paricipation in this proceeding will not broaden the issues. First, the
petitioners themselves do not ariculate a single reason as to why designation of TracFone as an
ETC is not in the public interest. TracFone and the Commission itself are left to guess what
bases these putative intervenors might raise to support their proffered conclusion that designation
of TracFone as an ETC wil not serve the public interest. Second, the petitioners do not know
the type of evidence they would be offering in this proceeding -- or, if they do know, they have
not revealed what evidence they plan to offer. As stated by both CTC Telecom and ITA: "The
nature and quality of evidence which this Intervenor wil introduce is dependent upon the nature
and effect of other evidence in this proceeding.,,6 Therefore, the petitioners have no basis for
contending that the issues in this proceeding wil not be unduly expanded asa result of their
intervention.
Finally, contrary to the petitioners' unsupported assertions, TracFone will be substantially
prejudiced by the delay in the Commission's consideration of its ETC Application if the
Commission grants the petitioners' request for a 45 day extension to the comment period.
TracFone initially fied its application for designation as an ETC with this Commission on
S IDAPA 31.01.01.204.
6 CTC Telecom Petition to Intervene, at 2; ITA Petition to Intervene, at 2.
4
MOTION IN OPPOSITION OF TRACFONE WIRELESS, INC.
TO PETITIONS TO INTERVENE MAY 19, 2010
October 29, 2009 -- nearly seven months ago. The Commission denied that application without
prejudice on February 5, 2010 based on its understanding that TracFone had not met certain legal
requirements related to transacting business in Idaho. TracFone subsequently explained to the
Commission that it was in full compliance with Idaho requirements regarding doing business in
Idaho and the Commission permitted TracFone to fie an Amended Application in the same
docket. Petitioners' request for additional time to participate in this proceeding, especially when
they already have an opportnity to fie comments, does not justify further delay. Moreover, as
noted in TracFone's Amended Application, only one wireless ETC in Idaho provides Lifeline
and that ETC serves only a small number of Lifeline customers.7 While there are other wireless
ETCs, including CTC Telecom, they are not receiving any Lifeline support, and as such are not
providing Lifeline service to any 10w-income Idaho consumers. TracFone's experience operating
as a designated ETC in many other states indicates that its SafeLink Wireless(l Lifeline service
is an attractive alternative to many low-income consumers.8 Further delay in this proceeding
wil deprive Idaho's low-income consumers from having meaningful competitive choice in
Lifeline services. Moreover, most low-income Idaho households wil not have any available
wireless Lifeline service options. As such, Idaho low-income consumers wil also be prejudiced
by additional delay in this proceeding.
7 Syringa Wireless, the one wireless ETC that has Lifeline customers only serves approximately
1,600 Lifeline customers. Syringa Wireless and ClearTalk (Syringa Wireless and ClearTalk
have merged and operate under the name Syringa Wireless) received a total of $193,116 in
Lifeline support in 2008. Assuming that the amount was spread evenly throughout the year and
that the maximum Lifeline support amount of $10.00 per customer per month was received,
Syringa Wireless had 1,609 customers (193,116 divided by 12, and then taking that quotient and
dividing it by 10 equals 1,609). See USAC FCC Filngs, Third Quarter Appendices - 2010,
Char LI05, at http://ww.usac.org/about/governance/fcc-filings/201 0/quarter-3.aspx.
8 Curently, TracFone has been designated as an ETC in 28 jurisdictions and is providing its
SafeLink WirelessCI Lifeline service to more than three milion low-income households in those
jurisdictions.
5
MOTION IN OPPOSITION OF TRACFONE WIRELESS, INC.
TO PETITIONS TO INTERVENE MAY 19, 2010
Based on the foregoing, TracFone requests that the Commission deny the petitions to
intervene filed by CTC Telecom and ITA and continue to conduct this proceeding under the
Commission's modified procedure in accordance with the March 18,2010 Notice.
~Mitchel1~
Debra McGuire Mercer
Counsel for TracFoneWireless, Inc.
May 18,2010
6
MOTION IN OPPOSITION OF TRACFONE WIRELESS, INC.
TO PETITIONS TO INTERVENE ..MAY 19,2010
CERTIFICATE OF SERVICE
I hereby certify that I have this 19th day of May 2010, served the foregoing MOTION IN
OPPOSITION OF TRACFONE WIRELESS, INC. TO PETITIONS TO INTERVENE OF CTC
TELECOM, INC. DBA SNAKE RIVER PCS AND IDAHO TELECOM ALLIANCE, in Case
No. TFW-T-09-01, via e-mail to the following:
Neil Price
Deputy Attorney General
Idaho Public Utilities Commission
P.O. Box 83720
Boise, Idaho 83720-0074
N eil.Price(ipuc.idaho. gov
Molly O'Lear
Richardson & O'Leary, PLLC
P.O. Box 7218
Boise, Idaho 83707
molly(irichardsonandolear .com
Cynthia A. Melilo
Givens Pursley LLP
601 N. Banock Street
P.O. Box 2720
Boise, Idaho 83701
cam(igivenspursley.com
s/ Raymond Lee
Raymond Lee