20110329Response to Joint Motions to Compel.pdf

McDevitt & MillerLLP
Lawyers
RECE rir..l
[phone]
[phone] (Fax)
420 W. Bannock Street
P.O. Box 2564-837d:'! MAR 29 PM 2: 36
Boise, Idaho 83702
Chas. F. McDevitt
Dean J. (Joe) Miler
March 29, 2011
Wa Hand Delivery
Jean Jewell, Secreta
Idaho Public Utities Cotnssion
472 W. Washigton St.
Boise, Idaho 83720
Re: In the Matter of The Application of TracFone Wireless
TFW- T -09-01
Dear Ms. Jewell:
Also enclosed for fig, please fid seven (J) copies of TracFone Wireless Inc's Response to Joint
Motions to Compel, or in the Alternative, Motion in Iimine of the Idaho Telecom Alance and CTC
Telecom, Inc. dba CTC Wireless.
Kidly retu a fie staped copy to me.
Very Truy Yours,
McDevitt & Mier IL~~Dean J. Mier
DJM/hh
End
Dean J. Miler (lSB No. 1968)
McDEVITT & MILLER LLP
420 West Banock Street
P.O. BOX 2564-83701
Boise, Idaho 83702
Tel: [phone]
Fax: [phone]
joe(fmcdevitt-miler .com
Mitchell F. Brecher (Pro Hac Vice)
Debra McGuire Mercer
GREENBERG TRAURG, LLP
2101 L Street, NW, Suite 1000
Washington, D.C. 20037
Tel: [phone]
Fax: [phone]
brecherm(fgtlaw.com
mercerdm(fgtlaw.com
Attorneys for TracFone Wireless, Inc.
OR1GlNAL
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2ûll 29 PH 2: 37
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION
OFTRACFONE WIRELESS, INC. FOR
DESIGNATION AS AN ELIGIBLE
TELECOMMUNICATIONS CARER.
) CASE NO. TFW-T-09-01
)
) TRACFONE WIRELESS, INC.'S
) RESPONSE TO JOINT
) MOTIONS TO COMPEL, OR IN
) THE ALTERNATIVE,
) MOTIONS IN LIMINE OF THE
) IDAHO TELECOM ALLIANCE
) AND CTC TELECOM, INC. DBA
) CTC WIRELESS
)
Pursuat to IDAPA 31.01.01.256.02 and 31.01.01.256.04, TracFoneWireless, Inc.
("TracFone") files the following Response to two Joint Motions to Compel, or in the alterntive,
Motions in Limine, of the Idaho Telecom Allance and CTC Telecom, Inc. dba CTC Wireless
TRACFONE WIRELESS, INC.'S RESPONSE TO JOINT MOTIONS TO COMPEL, OR IN THE
ALTERNATIVE, MOTIONS IN LIMINE OF THE IDAHO TELECOM ALLIANCE ANDCTC
TELECOM, INC. DBA CTC WIRELESS-!
(collectively, ITA and CTC) filed on March 24 and 25, 2011. The two Motions should be denied
because they fail to comply with this Commission's rules, were made for the purose of delay,
and seek information that is irrelevant to the subject matter of ths proceeding. As such, the
Commission should deny the Motions. However, as explaied in ths Response, TracFone will
respond, to the extent it has responsive materials in its possession, to one of the data requests that
is the subject of one of the Motions to Compel, even though the request seeks irrelevant
information and was served more than nine months afer ITA and CTC had a basis for asking for
the information.
INTRODUCTION
On Febru 18, 2011, ITA and CTC served the First Joint Production Request on
TracFone. In accordance with the Commssion's rues, TracFone timely fied objections to some
of the production requests on March 4,2011. The majority of the production requests to which
TracFoneobjected relate to TracFone's financial data which has no bearng on the merits of the
TracFone Application. On March 11, 2011, TracFone timely filed responses to the First Joint
Production Requests for which it did not fie an objection or for which it did file an objection but
stated that it would neverteless provide a response (without waiving its objection). ITC and
eTC, although aware of TracFone's objections on March 4, 2011, waited until 4:52 p.m. the
eveuingofMarch 25,2011-'21 days afer TracFone had timely filed its objections, and only 4
business days before the scheduled hearng on this matter-to file a Motion to Compel
(hereinafer, "First Production Request Motion to Compel"). ITA and CTC offer no reasons for
waiting thee weeks to fie their Motion. Having waited more than three weeks to file their
motion to compel, ITA and CTC have the temerity to request that TracFone fully anwer the
First Joint Production Requests one business day later, i.e., by 5:00 p.m., March 28, 2011. In
TRACFONE WIRELESS, INC.'S RESPONSE TO JOINT MOTIONS TO COMPEL, OR IN THE
ALTERNATIVE, MOTIONS IN LIMINE OF THE IDAHO TELECOM ALLIANCE AND CTC
TELECOM, INC. DBA CTC WIRELESS-2
the alternative, ITA and CTC request that the Commission strke any reference regarding the free
natue and/or economic benefits of TracFone's proposed service offering from the record and not
to consider any such claims in its deliberations. In other words, ITA and CTC ask that the
Commission evaluate whether or not TracFone's proposed Lifeline service would serve the
public interest while disregarding some of the factors which make the proposed offering so
invaluable to Idaho's low-income households and why the proposal would serve the public
interest.
On March 9, 2011, ITA and CTC served the Second Joint Production Request on
TracFone. This production request seeks information regarding TracFone's communications
with Governor C.L. "Butch" Otter and Idaho Representative Wendy Jaquetthat may have
preceded letters from Governor Otter or Representative Jaquet that are contaed in the
Secreta's Offcial File (RP 282) and which support approval of the TracFone's Application.
In accordance with theCommission's rules, TracFone timely filed an objection to the production
request on March 23, 2011. ITC and CTC filed a Motion to Compel (hereinafer, "Second
Production Request Motion to Compel") on March 24,2011. In the Motion to Compel, ITA and
CTC ask TracFone to fully answer the Second Joint Production Requests by 5:00 p.m., March
28, 2011. In the alterntive, ITA and CTC request the Commission to stre letters from
Governor Otter and Representative Jaquet from the record and to not consider those letters in its
deliberations.
In both the First Production Request Motion to Compel and the Second Production
Request Motion to.. Compel, IT A and CTC request expeditious relief from the Commission
pursuatto IDAPA 31.01.01.256. However, as discussed below, ITA and CTC failed to comply
with the essential procedural requirements for seeking expeditious relief and for submission of
TRACFONE WIRELESS, INC.'S RESPONSE TO JOINT MOTIONS TO COMPEL, OR IN THE
ALTERNATIVE, MOTIONS IN LIMINE OF THE IDAHO TELECOM ALLIANCE AND CTC
TELECOM, INC. DBA CTC WIRELESS-3
motions to compeL. In addition, the timing and procedural deficiencies of the motions
demonstrate that ITA and CTC's intent is to harass TracFone and cause unecessar delay in this
proceeding. Moreover, ITA and CTC fail to demonstrte that the information requested it
relevant to the subject matter of ths proceeding.
ARGUMENT
I. Neither the First Production Request Motion to Compel nor the Second Production
Request Motion to Compel Complied with the Commission's Rules Governing
Motions to Compel or Requests for Expeditious Relief.
The Commission's rules provide: "Unless otherwse provided by these rues, order, or
notice, the scope and procedure of discovery, other than statutory examnation and audit, is
governed by the Idaho Rules of Civil Procedure." IDAPA 31.01.01.221.05. In both motions,
IT A and CTC assert that discovery matters before the Commssion are governed by the Idaho
Rules of Civil Procedure ("IRCP"). i TracFone does not dispute that assertion. ITA and CTC,
while relying on the IRCP to assert that they are entitled to obtai certn information from
TracFone, proceed to disregard the par of the IRCP that govern motions to compeL. IRCP
37(a)(2) provides: "The motion (to compel) must include a certification that the movant has in
good faith conferred or attempted to confer with the par not making the disclosure in an effort
to secure the disclosure without (Commssion) action." (emphasis added) Durng the thee
weeks between the date that TracFone filed its objections to the First Joint Production Request
(March 4, 2011) and the date that ITA and CTC filed their First Production Request Motion to
Compel (March 25, 2011), counsel for TracFone did not receive any communcation from
counsel Jor ITA or from counsel for CTC attempting to confer with respect to TracFone'.s
i First Production Request Motion to Compel, at 2; Second Production Request Motion to Compel, at 2.
TRACFONE WIRELESS, INC.'S RESPONSE TO JOINT MOTIONS TO COMPEL, OR IN THE
ALTERNATIVE, MOTIONS IN LIMINE OF THE IDAHO TELECOM ALLIANCE AND CTC
TELECOM, INC. DBA CTC WIRELESS-4
objections? Counsel for TracFone also did not receive any communication from counsel for
ITA or from counsel for CTC attempting to confer with TracFone prior to fiing the Second
Production Request Motion to CompeL. 3
The purose of the "meet and confer" obligation is obvious-the Commssion's valuable
time should not be taen up on discovery disputes until it can be demonstrated that good faith
efforts between the paries to resolve such disputes have failed. ITA and CTC undertook no
efforts to resolve discovery issues prior to filing the motions to compel as required by IRCP. As
such, the Commission should deny the motions.
In addition, both motions to compel fail to comply with the Commission's rue governg
requests for expedited relief. IDAP A 31.01.01.256.02 provides that a motion requesting relief on
fewer than foureen (14) days' notice:
will not be acted upon on fewer than foureen (14) days' notice uness it states:
a. The facts supporting its request to act on shorter notice;.and
b. 1) That at least one representative of all paries has received actual notice of the
motion, by telephone or personal delivery of the motion; or 2) stating the efforts
made to reach representatives of those paries not contacted and what efforts will
continue to be made to contact them.
Neither motion stated any facts supporting the request to act on shorter notice. Furermore,
neither motion stated that a representative of TracFone had received actul notice of the rnotion
by telephone or personal delivery of the motion nor that any efforts were made to . reach a
representative of TracFone. Indeed, counsel for TracFone dîd not receive any such notice.4 The
motions to compel are procedurally deficient and should be denied. Despite the procedurl
2 See Affdavits of Dean J. Miler and Mitchell F. Brecher, atthed as Exhibit 1.
3 Id.
4 Id.
TRACFONE WIRELESS, INC.'S RESPONSE TO JOINT MOTIONS TO COMPEL, OR IN THE
ALTERNATIVE, MOTIONS IN LIMINE OF THE IDAHO TELECOM ALLIANCE AN CTC
TELECOM, INC. DBA CTC WIRELESS-5
shortcomings of the motions, TracFone will, to the extent it has responsive materials in its
possession, provide a response to the request at issue in the Second Production Request Motion
to CompeL.
II. The Motions to Compel, Which Were Filed for the Purpose of Delay, Do Not Justify
Any Delay in the Hearig Scheduled in this Proceeding.
Whle the motivations that lead an opposing pary to fie motions in a proceeding are not
susceptible to direct proof, it is possible, and proper, to look at observable facts and draw
inferences from observed facts. In this proceeding the observable facts are the following: On
May 28, 2010, the Commission granted the petitions to intervene of ITA and CTC. Since that
time, ITA and CTC have had ample opportty to seek discovery from TracFone. Indeed, both
ITA and CTC asked to intervene in this proceeding so. that they could "propound appropriate
discovery."s However, ITA and CTC waited until Februar 18,2011, almost nie months after
becoming paries to this proceeding, to propound their first set of production requests, and waited
nearly one additional month-until March 9, 2011-to seek TracFone's communcations with
Governor Otter and Representative Jaquet. Indeed, letters from Governor Otter and
Representative Jaquet were filed with ths Commission on April 19, 2010 .and May 18, 2010,
respectively-more than ten months before ITA and CTC'sattempt to discover information
concerning those letters. Therefore, ITA and CTC's last minute request for TracFone's
communcations with these individuas can only be an attempt to delay this proceeding.
Furhermore, regarding the First Joint Production Request, TracFone timely filed objections on
March 4,2011, but ITC and CTC waited until the evening of March 25,2011-21 days later and
4 business days before the hearng on ths matter-to file the First Production Request Motion to
5 ITA Petition to Intervene, May 14, 2010, at 3; CTC Petition to Intervene, May 14,2010, at 3.
TRACFONE WIRELESS, INC.'S RESPONSE TO JOINT MOTIONS TO COMPEL, OR IN THE
ALTERNATIVE, MOTIONS IN LIMINE OF THE IDAHO TELECOM ALLIANCE AND CTC
TELECOM, INC. DBA CTC WIRELESS-6
CompeL. Durng those thee weeks, neither IT A nor CTC contacted or even attempted to contact
TracFone to advise it that there was any disagreement with TracFone's objections. There is no
excuse for waiting thee weeks to file the Motion to Compel, in paricular knowing that the
hearing in ths proceeding is scheduled for March 31, 2011. Moreover, there is no excuse for
failing to comply with the Commission's rues governing motions to compel and requests for
expedited relief as explained in Section I of ths Response.
Based on these observed facts, a permissible, and perhaps unavoidable, inference is that
both the First Production Request Motion to Compel and the Second Production Request Motion
to Compel were filed for the purose of delay. Indeed, counsel for ITA and counsel for CTC
previously have attempted to delay the hearng. 6 ITA and CTC should not be allowed to benefit
from their failure to comply with established Commission procedural requirements and from an
apparent pattern of delay in conducting discovery in this proceeding. TracFone requests the
Commission to deny the. motions to compel and strongly urges the Commission to proceed with
the Technical Hearng set for March 31, 2011, as scheduled.
III. The Motions to Compel Seek Information That is Neither Relevant nor Reasonably
Calculated to Lead to Admissible Evidence Related to the Subject Matter of This
Proceeding.
IT A and CTC assert that the scope of discovery is broad. However, as stated by ITA and
CTC in . its motions and as IRCP 26(b)(2) provides: "(p)aries may obtan discovery regarding
any matter which is relevant to the subject matter involved in the pendig action." (emphasis
added). Thus, discovery is not an unimited exploration into any and all factu information
6 See E-mail from M.O'Lear, counsel for CTC, Februar is, 2011, stated that CTC would not serve discovery
until Februar 18, 2011 at the earliest and noting that "the hearing date wil need to accommodate that reality"; e-
mail from C. Melilo, counsel for ITA, February is, 2011, stating that she had "tentative trvel plans the week of
March 28" as a basis for March 31, 2011 not being a convenient date for the hearg. Copies of these e-mails are
provided as Exhibit 2.
TRACFONE WIRELESS, INC.'S RESPONSE TO JOINT MOTIONS TO COMPEL, OR IN THE
ALTERNATIVE, MOTIONS IN LIMINE OF THE IDAHO TELECOM ALLIANCE AND CTC
TELECOM, INC. DBA CTC WIRLESS-7
about which ITA and CTC may have a desire to obtan. Rather, discovery must regard issues
that are relevant to the subject matter of the proceeding. The subject matter of this proceeding is
whether TracFone meets the legal requiements for being designated as an Eligible
Telecommuncations Carer ("ETC"). The production requests to which TracFone objects do
not seek information relevant to whether TracFone meets those legal requirements. At a
minimum, discovery requests must be reasonably calculated to lead to admissible evidence.
Neither of the Motions to Compel meet ths mium theshold, as discussed below.
The First Production Request Motion to Compel is a generalized request for responses to
the First Joint Production Request. ITA and CTC assertthat the First Joint Production Requests
"asked TracFone to provide varous financial data regarding its SafeLink Lifeline offering that is
the subject of its ETC Application and its economic characterization of that service, includig its
so-called 'free' handset."? However, ITA and CTC do not identify any specific data request for
which they need a response.
ITA and CTC appear to dispute whether the handsets TracFone provides to its Lifeline
subscribers are actuly free. As TracFone has explained in its Amended ETC Application and
in its testimony, TracFone provides its Lifeline customers with a free E911-compliant handset at
its own expense. Providing free handsets to Lifeline customers is a business decision; it is not a
Lifeline requirement. No portion of the handset cost is supportd by the Federal Universal
Service Fund, by any state fud or by ratepayers of any Idao intrastate telecommuncations
service. Given the undisputed fact that TracFone provides its Lifeline customers with handsets
at its own expense, the cost of those handsets to TracFone would have no bearng on TracFoneds
7 Firt Production Request Motion to Compel, at i.
TRACFONE WIRELESS, INC.'S RESPONSE TO JOINT MOTIONS TO COMPEL, OR IN THE
ALTERNATIVE, MOTIONS IN LIMINE OF THE IDAHO TELECOM ALLIANCE AN CTC
TELECOM, INC. DBA CTC WIRELESS-8
use of Universal Service Fund resources and no relevancy to its quaifications to be designated as
an ETC under the applicable ETC designation criteria established by the Federal
Communications Commssion ("FCC") and by this Commission.
Furermore, IT A and CTC have failed to identify how each of the production requests
to which TracFone has objected are relevant to whether TracFone should be designated as an
ETC. Indeed, they point to no legal requirement for ETC designation that concerns financial
data or the costs incured by a potential ETC. The only specific issue ITA and CTC raise is the
fact that TracFone filed a letter with the FCC on Februar 24,2011, which it asserts to contan
"much of the same inormation requested of (TracFone) by the Intervenors."g ITA and .CTC
have not specifically requested an unedacted copy of the Februar 24, 2011 letter (which was
not provided to the FCC to determine whether TracFone meets any legal requirements to be
designated as an ETC) nor have they identified any production request that seeks the same
information as that disclosed in the letter to the FCC. For the foregoing reasons, the Commission
should deny the First Production Request Motion to CompeL.
ITA and CTC's alternative request that TracFone not be allowed to refer to the free
natue of its service is baseless and should be denied. TracFone's Lifeline service is offered to
all of its customers at no cost. There is no charge for the number of airtime miutes chosen by
the Lifeline customer, no additional charges for any callng featues, such as voicemail and caller
ID, and no roaming charges. TracFone also provides a free handset to its Lifeline customers.
8 Id. at 3. In that ex pare letter, TracFone provided information to the FCC on a confidential basis the break even
point for TracFone'sLifeline service (i.e., how many months customers must remain enrolled in the Lifeline
progr for TracFone to break even on its investment in each customer, and information regarding Lifeline
customers' average monthly usage. Because that informtion was provided to the FCC on a confidential. basis, no
competing ETC wil have access to that information. Moreover, the information provided to the FCC was not
requested by ITA and CTC.
TRACFONE WIRELESS, INC.'S RESPONSE TO JOINT MOTIONS TO COMPEL, OR IN THE
AL TERNA TIVE, MOTIONS IN LIMINE OF THE IDAHO TELECOM ALLIANCE AND CTC
TELECOM, INC. DBA eTC WIRELESS-9
There are simply no hidden charges for TracFone's Lifeline service. ITA and CTC's request tht
TracFone not be allowed to refer to the terms of its Lifeline service is highy prejudicial and
would deny the Commission the abilty to faily evaluate TracFone's proposed Lifeline service
based upon all available information relevant to that servce.
Finally, ITA and CTC's Second Production Request Motion to Compel, which asks the
Commission to order TracFone to provide its communcations with Governor Otter and
Representative Jaquet, should be denied. There is no prohibition on an ETC applicant discussing
its pending application with the Governor or any state representative nor is there a prohibition on
attempting to gain to support of such individuas. The letters filed with the Commssion provide
the Governor Otter's and Representative Jaquet's thoughts on TracFone's Lifeline service. In
Idaho as in all states, citizens have right to petition their governent and to correspond with their
elected officials. TracFone exercised that right. As a quai-legislative body, the Commission
has the right to consider the views of public offcials, giving those views the weight the
Commission considers appropriate, in its discretion. Detals concerng TracFone's permissible
communications with Governor Otter and with Representative Jacquet are not relevant to any
issue before the Commission regarding TracFone quaifications to be designated as an ETC.
Notwthstanding the incontrovertible fact that ths request is far outside the scope of permissible
discovery, TracFone wil, to the extent it has responsive materials in its possession, provide such
information in its possession that is responsive to ths request.
TRACFONE WIRELESS, INC.'S RESPONSE TO JOINT MOTIONS TO COMPEL, OR IN THE
ALTERNATIVE, MOTIONS IN LIMINE OF THE IDAHO TELECOM ALLIACE AND CTC
TELECOM, INC. DBA CTC WIRELESS-tO
CONCLUSION
Based of the foregoing, TracFone respectfuly request ths Commssion to deny the
Motions to Compel and to proceed with the Technical Hearng as scheduled on March 31, 2011.
Respectfully Submitted, ths "L..t't day of March, 2011.
\11\11
Dean J.'Miler (ISi3No. 1968)
McDEVITT & MILLER LLP
420 West Banock Street
P.O. BOX 2564-83701
Boise, Idaho 83702
Tel: [phone]
Fax: [phone]
joe(imcdevitt-miler.com
Mitchell F. Brecher (pro hac vice)
Debra McGuire Mercer
GREENBERG TRAURIG, LLP
2101 L Street,NW, Suite 1000
Washigton, D.C. 20037
Tel: [phone]
Fax: [phone]
brecherm(igtlaw.com
mercerdm(igtlaw.com
Attorneys for TracFone Wireless, Inc.
TRACFONE WIRELESS, INC.'S RESPONSE TO JOINT MOTIONS TO COMPEL, OR IN THE
ALTERNATIVE, MOTIONS IN LIMINE OF THE IDAHO TELECOM ALLIANCE AND CTC
TELECOM, INC. DBA CTC WIRELESS-ll
CERTIFICATE 'OF SERVICE
I hereby certify that on the ~y of March, 2011, I caused to be served, via
the methodes) indicated below, tre and correct copies of the foregoing document, upon:
Jean Jewell, Secreta
Idaho Public Utilties Commission
472 West Washington Street
P.O. Box 83720
Boise,ID 83720-0074
j jewell(iuc.state.id. us
Neil Price, Esq.
Idaho Public Utilties Commission
472 West Washington Street
P.O. Box 83720
Boise,ID 83720-0074
NeiL.Price(ipuc.idaho. gOY
Molly O'Lear, Esq.
Richardson & O'Lear, PLLC
P.O. Box 7218
Boise, ID 83707
molly(irichardsonandolear.com
Cynthia A. Melilo, Esq.
Givens Pursley LLP
601 N. Banock Street
P.O. Box 2720
Boise, ID 83701
cam(igivenspursley.com
AFFIDAVIT OF DEAN J. MILLER-t2
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BY:
Me
Exhibit 1
Dean J. Miler (lSB No. 1968)
McDEVITT & MILLER LLP
420 West Banock Street
P.O. BOX 2564-83701
Boise, Idaho 83702
Tel: [phone]
Fax: [phone]
joe(imcdevitt -miler. com
Mitchell F. Brecher (Pro Hac Vice)
Debra McGuire Mercer
GREENBERG TRAURIG, LLP
2101 L Street, NW, Suite 1000
Washington, D.C. 20037
Tel: [phone]
Fax: [phone]
brecherm(igtlaw.com
mercerdm(i gtlaw. com
Attorneys 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 CARER.
) CASE NO. TFW-T-09-01
)
) AFFIDAVIT OF DEAN J.
) MILLER
)
)
)
)
)
STATE OF IDAHO )
: ss
County of Ada )
Dean J. Miler, being first duly sworn upon an oath deposes and says:
1. I am one of the attorneys of record for the Applicant herein, TracFone Wireless,
Inc (TracFone).
AFFIDAVIT OF DEAN J. MILLER-t
2. Between March 4,2011, the date on which TracFonc fied objections to
Intervenor's First Production Request, and March 25,2011, the date on which
ITA and CTC fied their first Motion to Compel Discovery, I did not receive any
communcation, either in wrting or orally, from counsel for ITA and CTC to
meet and confer regarding TracFone's objections to the Intervenor's First
Production Request. Likewise, I did not receive from counsel for IT A and CTC
and request to confer regarding Intervenors second Motion to Compel Discovery.
DATED ths .:day of Mah, 2011~~1i--
Dean J. iller
Attorney for TracFone Wireless, Inc.
STATE OF IDAHO )
) ssCounty of Ada )
SUBSCRIBED AND SWORN before me this B-~ day of September, 2010
."......,...
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'W~9~)Name:Nota Pu~aho
Residing at ~50) r;
My commission expires lQ t.\ 1¿
AFFIDAVIT OF DEAN J. MILLER-2
Dean J. Miler (lSB No. 1968)
McDEVITT & MILLER LLP
420 West Banock Street
P.O. BOX 2564-83701
Boise, Idaho 83702
Tel: [phone]
Fax: [phone]
joe(imcdevitt-miler.com
Mitchell F. Brecher
Debra McGuire Mercer
GREENBERG TRAURIG, LLP
2101 L Street, NW, Suite 1000
Washington, D.C. 20037
Tel: [phone]
Fax: [phone]
brecherm(igtlaw.com
mercerdm(igtlaw.com
Attorneys 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
)
) AFFIDAVIT OF MITCHELL F.
) BRECHER
)
AFFIDAVIT OF MITCHELL F. BRECHER
Mitchell F. Brecher, after first being sworn on oath, states as follows:
1. I am outside counsel for TracFone Wireless, Inc. ("TracFone"). My
business address is Greenberg Traurig, L.L.P., 2101 L Street, NW, Suite 1000,
Washington, D.C. 20037. This Affidavit is being provided in support of TracFone's
Response to Joint Motions to Compel, or in the Alternative, Motions In Limine of the
Idaho Telecom Allance and CTC Telecom, Inc. dba CTC Wireless, filed in Case No.
TFW-T-09-01.
2. On February 18, 2011, Idaho Telecom Allance ("ITA") and CTC
Wireless ("CTC") served a First Joint Production Request on TracFone. In accordance
with the Commission's rules, TracFone timely filed objections to some of the production
requests on March 4, 2011. On March 11, 2011, TracFone timely fied responses to the
First Joint Production Requests. ITC and CTC fied a motion to compel responses to the
First Joint Production Request on March 25, 2011. ITC and CTC sought expedited relief
in the motion to compeL.
3. During the time between the date that TracFone filed its objections to the First
Joint Production Request (March 4, 2011) and the date that ITA and CTC fied their
motion to compel responses to the First Joint Production Request (March 25, 2011), I did
not receive any communication from counsel for ITA or from counsel for CTC
attempting to confer with TracFone prior to filing the motion to compeL. I also did not
receive actual notice of the motion to compel by telephone or personal delivery.
4. On March 9, 2011, ITA and CTC served Second Joint Production Request
on TracFone. In accordance with the Commission's rules, TracFone timely fied an
objection to the production request on March 23,2011. ITA and CTC filed a motion to
compel responses on March 24, 20l 1. ITA and CTC sought expedited relief in the
motion to compeL.
5. I did not receive any communication from counsel for ITA or from counsel for
CTC attempting to confer with TracFone prior to fiing the motion to compel responses to
the Second Joint Production Request. I also did not receive actual notice of the motion to
compel by telephone or personal delivery.
I hereby certify that, to the best of my knowledge, the foregoing is true and
accurate.
~~cher i / i PIli
Date
Sworn to and subscribed before me this 28th day of March, 2011.
Notar Public
" OAYEL FAYGON~,
NOTARY ~UBUC DISTRICT OF COLUMIA
My Çon:m!ssion Exires De 14, 2013
2
Exhibit 2
New Proposed Schedule Page i of3
From: Neil Price (mailto:Neil.Price(§puc.idaho.gov)
sent: Tuesday, February 15, 2011 6:25 PM
To: Cynthia A Melilo; Brecher, Mitchell (Shld-DC-TeICom); Joe Miller; Molly O'leary
Cc: Joe Cusick; Grace Seaman
Subjec: RE: New Proposed SChedule (IWOV-GPDMS.FID485913)
By tentative I assume you mean that are indefinite and/or they can be rescheduled? March 31 is literally one of the
last options the Commisioners have for quite a while without reshuffling other matters.
Neil
From: Cynthia A Melilo (mailto:cam(§givenspursley.com)
sent: Tuesday, February 15, 2011 4:20 PM
To: Neil Price; BRECHERM(§gtlaw.com; Joe Miler; Molly O'leary
Cc: Joe Cusick; Grace Seaman
Subjec: RE: New Proposed Schedule (IWOV-GPDMS.FID485913)
Neil,
Unfortunately, I have tentative travel plans the week of March 28.
Cyntlîía .J. :.eatTo
Givens Pursley, LLP
601 W. Bannock Street
Boise, ID 83702
208-388-1273 (office)
208-412-4686 (cell)
208-388-1300 fax
cam~givenspursley.com
CONFIDENTIALITY NOTICE: This e-mail contains confidential information that is protected by the attorney-
client and/or work product privilege. It is intended only for the use of the individual(s) named as recipients. If
you are not the intended recipient of this e-mail, please notify the sender, please do not deliver, distribute or
copy this e-mail, or disclose its contents or take any action in reliance on the information it contains.
From: Neil Price (mailto:NeiI.Price(§puc.idaho.gov)
sent: Tuesday, February 15, 2011 4: 16 PM
To: BRECHERM(§gtlaw.com; Joe Miler; Cynthia A Melillo; Molly O'leary
Cc: Joe Cusick; Grace Seaman
Subjec: New Proposed SChedule
3/28/2011
New Proposed Schedule Page 2 of3
Parties,
After consulting with the parties regarding the previously proposed schedule, there was some
concern regarding the need for adequate time for the submission and answering of discovery
requests prior to the preparation of testimony. i believe that the confidentiality agreement
circulated by TracFone has alleviated some of those concerns. Shortly, the intervenors wil receive
copies of the additional data/information not currently posted on the Commission's public page.
i have prepared a Notice of Hearing that essentially moves all of the dates in the previous schedule
back 7-14 days. TracFone will file Direct Testimony no later than Feb. 25, 2011; Staff/Intervenors
March 16,2011; TracFone Rebuttal March 23, 2011. The hearing date wil be March 31, 2011. That
is the best I can do and still accommodate the Commissioners busy schedule and keep this case
moving in a forward trajectory. That said, the Commission has routinely allowed witnesses, upon
taking the stand and presenting their testimony for admission into the record, to both correct and
supplement their pre-filed testimony (prior to cross-examination) based upon subsequent
information. Obviously, any supplemental testimony is subject to cross-examination and/or an
objection if any party seeks to abuse this privilege with duplicative or extraneous testimony.
Notwithstanding an actual time conflict (travel, previously scheduled court hearing, etc.), I think we
need to get the schedule out and make sure that discovery is completed in a cooperative and
expeditious manner.
Regards,
Neil
D. Neil Price
Deputy Attorney General
Idaho Public Utilities Commission
P.O. Box 83720
Boise, Idaho 83720-0074
Tel: [phone]
Fax: [phone]
neiLpriceaYpuc.idaho. gov
CONFIDENTIALITY NOTICE: This e-mail message is for the sole use of the intended recipient
(s) and may contain information that is privileged, confidential and exempt from public disclosure
under applicable law. If you are not the intended recipient, any review, disclosure, copying or
3/28/2011
New Proposed Schedule Page 3 of3
distribution is strictly prohibited and may be unawfuL. If you have received this e-mail in error,
please notify the sender by reply, then immediately delete and destroy all copies of ths e-maiL.
Than you.
3/28/2011
Page 1 of3
From: Molly O'leary (mailto:molly(Qrichardsonandoleary.com)
sent: Tuesday, February 15,2011 6:15 PM
To: Joe Miller; Neil Price; Cynthia A Melillo; Brecher, Mitchell (Shld-DC-TeICom)
Subjec: RE: TracFone (IWOV-GPDMS.FID485913)
As we previously indicated, we intend to complete discovery before we file our direct testimony.
This was communicated to Neil the day of the January 24th Commission Decision Meeting, before
a proposed hearing date was sought.
We anticipate getting our discovery out this Friday or Monday. Assuming TracFone responds, in
full, within the required 3-week timeframe (3/11 or 3/14), we should be able to file our direct
testimony by 3/18 or 3/21.
The hearing date will need to accommodate that reality.
Best Regards,
9vo(Cy 0 'Leary
Richardson & O'Leary PLLC
515 N. 27th Street, 83702
P.O. Box 7218, 83707
Boise, Idaho
Voice: 208.938.7900
Facsimile: 208.938.7904
Disclaimer: This message may contain confidential communications protected by the attorney client
privilege. If you received this message in error, please delete it and notify me of the error.
Thank you!
From: Joe Miler (mailto:joe(Qmcdevitt-miler.com)
sent: Tuesday, February 15, 2011 4:01 PM
To: Neil Price; Cynthia A Melillo; Molly O'leary; BRECHERM(§gtlaw.com
Cc: Brenda Sorrell
Subjec: Re: TracFone (IWOV-GPDMS.FID485913)
Thanks, NeiL.
As you recall, TracFone was amenable to the schedule originally proposed. Any slippage in the hearing date would be
frustrating.
Joe
3/28/2011
Page 2 of3
----- Original Message -----
From: Neil Price
To: Cynthia A Melillo; Joe Miller; Molly O'leary ; BRECHERM~gtlaw.com
Cc: Brenda Sorrell
Sent: Tuesday, February 15, 2011 3:52 PM
Subject: RE: TracFone (IWOV-GPDMS.FID485913J
We are making copies and sending them to the intervenors as I type. FYI- still waiting for confirmation from the
Commissioner's Asst. on whether we can move the hearing date back. I'll have an email out to the parties
detailing the schedule as soon as I get word.
Neil
From: Cynthia A Melillo (mailto:cam(Qgivenspursley.com)
Sent: Tuesday, February 15, 2011 3:39 PM
To: 'Joe Miler'; Neil Price; Molly O'leary; BRECHERM(Qgtlaw.com
Cc: Brenda Sorrell
Subjec: RE: TracFone (IWOV-GPDMS.FID48S913)
Brenda,
I would like the information previously submitted by TracFone to the Staff. Thank you.
Cindy
Cyntfiía .Jt :MeÚrro
Givens Pursley, LLP
601 W. Bannock Street
Boise, ID 83702
208-388-1273 (office)
208-412-4686 (cell)
208-388-1300 fax
cam(Çgivenspursley.com
CONFIDENTIALITY NOTICE: This e-mail contains confidential information that is protected by the attorney-
client and/or work product privilege. It is intended only for the use of the individual(s) named as recipients. If
you are not the intended recipient of this e-mail, please notify the sender, please do not deliver, distribute or
copy this e-mail, or disclose its contents or take any action in reliance on the information it contains.
From: Joe Miler (mailto:joe(Qmcdevitt-miler.com)
Sent: Tuesday, February 15, 2011 3:34 PM
To: Neil Price; Molly O'leary; Cynthia A Melilo; BRECHERM(Qgtlaw.com
Cc: Brenda Sorrell
Subject: Fw: TracFone
AII--
For your files here is the fully executed agreement.
3/28/2011
Page 3 of3
Brenda-
If the intervenors desire access to information previously submitted by TracFone to the Staff, we have no
objection.
Thanks to all for getting this wrapped up.
Joe
----- Original Message -----
From: heather
To: ioe~mcdevitt-miller.com
Sent: Tuesday, February 15, 2011 3:26 PM
Subject: TracFone
Heather Houle-Legal Assistant
McDevitt & Miler LLP
420 West Bannock
Post Office Box 2564-83701
Boise, Idaho 83702
P: 208.343.7500
F: 208.336.6912
Ths e-mai message from the law fi of McDevitt & Mier LLP is intended only for named recipients. It contais
information that may be confidential, privieged, attorney work product, or otherwse exempt from disclosure under
applicable law. If you have received this message in error, are not a named recipient, or are not the employee or agent
responsible for deliverig ths message to a named recipient, be advised that any review, disclosure, use, dissemiation,
distrbution, or reproduction of this message or its contents is strctly prohibited.
To the extent this e-mai message contains lega advice, it is solely for the benefit of the client(s) of McDevitt & Miler
represented by the Fir in the parcular matter that is the subject of this message and may not be relied upon by any other
party.
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3/28/2011