20120724District Court Complaint.pdf

RECEV F.
Richard H. Greener
rgreener©greenerlaw.com ALFA® INTERNA1lWLn
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[phone] The Global Legal L+ 14: 1414
IDAHO
July 24, 2012 UTILT1ES COMMISSION
Idaho Public Utilities Commission Via Facsimile & Hand Delivery
472 W. Washington Street 2081334-3762
P.O. Box 83720
Boise, ID 83720-0074
Re: TracFone Wireless v. State ofIdaho and Idaho Emergency Communications
Ada County District Court Case No. CV OC 1210005
GBS File No. 19360-001
Gentlemen:
The law firms of McDevitt & Miller, LLP and Greener Burke Shoemaker P.A. have been
retained by TracFone Wireless, Inc. to represent its interests in a declaratory judgment claim that is
presently pending in the Fourth Judicial District Court of the State of Idaho for Ada County against
the State of Idaho and the Idaho Emergency Communications Commission. Said action seeks relief
from the Idaho District Court from Order No. 32358 issued September 19, 2011 by the Idaho Public
Utilities Commission ("IPUC") in Case No. TFW-T-09-01 relating to the Amended Application of
TracFone Wireless, Inc. for Designation as an Eligible Telecommunications Carrier. A copy of the
Complaint on file in the Ada County District Court is enclosed for your reference.
As you may or may not already know, all parties to litigation and their counsel have a strict
legal obligation under court rules to retain and preserve any and all documents that may relate, in
any way, to such litigation. In order to ensure that we have fulfilled our obligation to ensure the
preservation and retention of any records that may become relevant to this case, we are requesting
that the IPUC please place a hold on and preserve all records in its possession relating to the initial
and/or Amended Application of TracFone Wireless, Inc. filed before the IPUC in connection with
Case No. TFW-T-09-0 1. This documentation hold request seeks to preserve, but shall not be limited
to, all filings contained in the record before the IPUC, as well as all correspondence and other forms
of written communications (including without limitation letters, memoranda, notes (both typed and
handwritten), opinions and emails), circulated both internally within the IPUC and between and
among the IPUC, the parties and their counsel, as well as any interested third parties, and shall
include all writings and/or documents in both hard copy and electronic format. Privileged
communications between the IPUC and its counsel should be preserved for identification purposes,
although the same may ultimately be withheld from production in accordance with court rules.
Please ensure that any relevant records that you may have, both in hard copy and electronic
format, are preserved.
Should you have any questions regarding the above, please feel free to contact us, or have
your legal counsel contact us, at your convenience.
950w. bannock Street, Suite 900 1 boise idaho 83702 1 f. 208 319 2601 1 o. 208 319 2600
July 24, 2012
Page 2
Thank you for your anticipated cooperation in this matter.
wpl Very truly yours,
BURKE SHOEMAKER P.A.
Richard H.
McDEVITT & MILLER, LLP
Aeaniller
RIUG/cmb
Enclosure
(474904)
950w. bannock street, suite 900 1 boise idaho 83702 1 f. 208 319 2601 1 o. 208 319 2600
S S
RECE1VrT
20I2JUL24 PH 4:E7
Dean J. Miller (JSBNo. 1968)
Chas. F. McDevitt (ISB No. {-r
McDEVITI' & MILLER LLP
420 West Bannock Street
P.O. Box 2564-83701
Boise, ID 83702
Tel: [phone]
Fax: [phone]
joeämcdevitt-miller.com
chas(ähncdevitt-miller,com
Mitchell F. Breeher (pending pro hac vice-DCB No. 210781)
Debra McGuire Mercer
GREENBERG TRAURIG, LLP
2101 L Street, NW, Suite 1000
Washington, DC 20037
Tel: [phone]
Fax: [phone]
brechemgt1aw.com
[e-mail]
Attorneys for TracFone Wireless, Inc.
NO FILED
kM.
JUN 042012
CHRISTOPHER D. RICH, Clerk
By JERI HEATON
DEPUTY
IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT
OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA
TRACFONE WIRELESS, INC,
Plaintiff,
vs.
THE STATE OF IDAHO AND THE IDAHO
EMERGENCY COMMUNICATIONS
COMMISSION,
Defendants.
CV DC
Case No.
COMPLAINT FOR DECLARATORY
JUDGMENT
COMES NOW TracFone Wireless, Inc., (TracFone) and for a cause of action, upon
which relief can be granted, complains and alleges as follows:
COMPLAINT FOR DECLARATORY JUDGMENT-i
S
I.
Parties
1.TracFone is a Delaware Corporation authorized to conduct business in the State of
Idaho. TracFone is a telecommunications carrier engaged in the business of reselling
on a prepaid basis commercial mobile radio service as that term is defined at 47
U.S.C. § 332 (CMRS) in the State of Idaho.
2.The State of Idaho is the sovereign body responsible to implement and enforce the
laws of the State of Idaho.
3.The Idaho Emergency Communications Commission (IECC) is a governmental body
created by the Idaho Emergency Communications Act, Idaho Code §31-4801 et seq.
The duties and responsibilities of the IECC are described in Idaho Code §31-4816.
II.
Jurisdiction and Venue
4.The Court has jurisdiction pursuant to the Idaho Declaratory Judgment Act, Idaho
Code §10-1201 etseq.
5.Venue is proper in Ada County, Idaho.
Factual Background
6.Idaho Code § 31-4804 authorizes the collection of an Emergency Communications
Fee from purchasers of access lines by telecommunication providers for the purpose of
financing the maintenance, operation, enhancement and governance of a consolidated
COMPLAINT FOR DECLARATORY JUDGMENT- 2
S .
emergency communications (911 or E91 1) system. Section 31-4804(2) provides that
the Emergency Communications Fee shall be imposed upon and collected from
purchasers of access lines with a service address or place of primary use within the
county or 911 service areas on a monthly basis by all telecommunications providers.
Section 31-4804(2) further provides that the 911 fee may be listed as a separate item
on customers' monthly bills. Section 31-4804(3) states that telecommunications
providers shall remit the Emergency Communications Fee to the relevant county
treasurer's Office or administrator for the 911 service area based upon the area from
which the fee was collected. The issue presented in this case is whether the statute, as
currently enacted, obligates TracFone to remit the Emergency Communications Fee on
services which are not provided on a monthly basis and which are not collected from
consumers through charges on their monthly bills, ie., whether the Emergency
Communications Fee is applicable to non-billed resold prepaid wireless services.
7. TracFone resells wireless telecommunications service throughout the nation, including
Idaho. TracFone's services are provided on a prepaid basis only. Consumers
purchase specified quantities of wireless airtime in advance on an as-needed basis.
TracFone prepaid airtime cards are available for purchase through various third party
retail outlets (e.g. Wal-Mart, Target, Best Buy, etc.). Consumers may also purchase
prepaid airtime online through TracFone's internet website (www.tracfone.com ).
TracFone offers no post-paid or billed services and does not render monthly bills to
consumers of its prepaid services.
COMPLAINT FOR DECLARATORY JUDGMENT- 3
. S
8.On October 29, 2009, TracFone filed an Application with the Idaho Public Utilities
Commission ("1PUC") for designation as an Eligible Telecommunications Carrier
("ETC") pursuant to Section 214(e)(2) of the Communications Act of 1934, as
amended (47 U.S.C. § 214(e)(2)) for the limited purpose of providing Lifeline service
to qualified low-income Idaho households. Designation as an ETC allows
telecommunications carriers to offer discounted or, in TracFone's case, free
telecommunications service to qualified low-income consumers and to receive
reimbursement from the federal Universal Service Fund for the Lifeline benefits
provided to those consumers. On March 1, 2010, TracFone filed an Amended
Application for designation as an ETC with the IPUC, docketed as Case No. TFW-T-
09-0 1 ("Idaho PUC Proceeding").'
9.During the IPUC Proceeding, an issue arose as to whether TracFone is legally required
to collect and remit the Emergency Communications Fee to the various counties in
which it operates. TracFone asserted that, since its services are not provided on a
monthly basis and since consumers pay in advance for those services, primarily at
retail vendor locations, rather than through bills rendered to them, the statute, as
enacted, does not impose 911 fee remittance obligations on TracFone. It further
asserted that amendatory legislation would be necessary to extend coverage of Idaho's
911 fee law to non-monthly, non-billed prepaid services such as those provided by
TracFone.
'The Application may be viewed at:
http://w.pucidaho.ov/internetJcases/tele/TFW/TFWT090 1/20100301 FIRST%20AMENDE130/620APPL1CA
T1ON.PDF.
COMPLAINT FOR DECLARATORY JUDGMENT- 4
. S
10.On May 21, 2011, the IECC, acting through its Chairman, submitted a letter to the
IPUC contending that TracFone was responsible for remittance of the Emergency
Communications Fee and urged the IPUC to deny TracFone's ETC Application.
("IECC Letter")2 That letter contains no legal analysis, no explanation and no citation
to any authority in support of the assertion that the Emergency Communications Fee
remittance requirement of Section 31-4804 is applicable to TracFone's non-billed,
non-monthly, prepaid services. Although TracFone had been in contact with JECC
prior to that time, never before had the IECC or any representative of the IECC
expressed the opinion that the 911 fee was applicable to prepaid, non-billed, non-
monthly services like that provided by TracFone. Indeed, in documents generated by
the IECC, it indicated that the 911 fee requirement is not applicable to prepaid services
and that legislation would be necessary in order encompass prepaid services within the
911 fee requirement.
11.Through various pleadings, briefs and written testimony in the IPUC Proceeding,
TracFone asserted that it did not have a legal obligation to remit the Emergency
Communications Fee because, among other things, TracFone does not provide service
on a monthly basis, as expressly required by Idaho Code §31-4804 with respect to the
911 fee, and, as a reseller of prepaid services, it does not have a customer billing
process through which to collect and remit 911 fees as expressly contemplated by the
statute.
2 The IECC letter may be viewed at:
http://www.puc.idaho.ov/internet/cases/te1e/TFW/TFWT0901 /public%2Ocomments/20I00524COMMENT%20
(IECCI.PDF.
COMPLAINT FOR DECLARATORY JUDGMENT- 5
. I
12.On September 19, 2011, the Commission issued its final Reconsideration Order No.
32358, denying TracFone's Application.3 The IPUC's denial of TracFone's ETC
Application was based, in part, on its conclusion that TracFone's refusal to remit the
Emergency Communications Fee is contrary to the pubic interest.
13.In its final Reconsideration Order No. 32358, the IPUC placed heavy reliance on the
113CC Letter, but stated: "If TracFone disputes the IECC's clear statement regarding
the applicability of the IECA fee then it is free to challenge that finding before the
IECC or other appropriate legal venue" (emphasis added). IPUC Order No. 32358, at
8. The IPUC further concluded: "Absent the Company's assent to remit the
applicable fees, or seek an official ruling from the IECC, or another tribunal with
relevant jurisdiction, as to whether the fees applied, the designation of TracFone as an
ETC in Idaho would not be inthe public interest." j4 at 11-12.
14.On February 8, 2012, TracFone and the Staff of the IPUC entered into a Settlement
Stipulation. That Stipulation provides, inter alia, that TracFone would file with this
Court a declaratory judgment action requesting a legal determination as to whether
TracFone is required to pay the emergency communications fee pursuant to Idaho
Code § 31-4804. On May 18, 2012, the IPUC issued Order No. 32550 wherein it
The Order may be viewed at:
http://www.uuc.idaho.ov/internet/casestte1e/TFW/TFWT090 I /ordnotc/20l 1091 9RBCONSIDERATION_ORD
ER_NO_32358.PDF.
Here, the IPUC acknowledged that it is not a court with the judicial power to interpret or construe statutes that
are not within the scope of its jurisdiction under the Public Utility Law, but that it would give deference to
another state agency, in the absence of a judicial determination. Matters of statutory interpretation and
application should be adjudicated by courts of competent jurisdiction.
COMPLAINT FOR DECLARATORY JUDGMENT- 6
. .
approved the Stipulation and indicated that it would designate TracFone as an Eligible
Telecommunications Carrier as conditioned in the Stipulation.
15.In accordance with IPUC Order No. 32550, TracFone files this Complaint for
Declaratory Judgment in this Court, a tribunal with relevant jurisdiction, seeking a
declaration regarding whether TracFone is required to remit the Emergency
Communications Fee on its prepaid, non-billed services which are not provided on a
monthly basis.
Iv.
Issue for Determination
16.The issue for determination and upon which a declaration is sought is whether Idaho
Code §31-4804 as enacted, imposes the Emergency Communications Fee on
purchasers of non-billed prepaid wireless services and legally obligates resellers of
non-billed prepaid wireless services to collect and remit the Emergency
Communications Fee.
Pursuant to Idaho Code § 10-1202, TracFone is a person whose rights or legal relations
are affected by a statute and is entitled to obtain a declaration of rights thereunder.
TracFone respectfully requests that the Court enter its declaration to the effect that it is
not legally obligated to remit the Emergency Communications Fee.
V.
Justiciable Controversy
17.For the reasons set forth above, there is an actual and justiciable controversy between
TracFone and the Defendants.
COMPLAINT FOR DECLARATORY JUDGMENT- 7
S .
WHEREFORE, TracFone respectfully requests that the Court enters its Order:
1.Declaring and determining that TracFone is not legally obligated under
Idaho Code § 31-4804 as enacted to remit the Emergency Communications
Fee.
2.Granting such other and further relief is appropriate in the circumstances.
Dated this day of June, 2012.
Mc vitt & Miller LLP
By: A
eanJ.filer
Attorneys for TracFone Wireless, Inc.,
COMPLAINT FOR DECLARATORY JUDGMENT- 8