20120217notice_of_proposed_settlement_order_no_32463.pdf

Office of the Secretary
Service Date
February 17,2012
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE AMENDED )
APPLICATION OF TRACFONE )CASE NO.TFW-T-09-O1
WIRELESS,INC.FOR DESIGNATION AS )
AN ELIGIBLE TELECOMMUNICATIONS )NOTICE OF
CARRIER )PROPOSED SETTLEMENT
)
)ORDER NO.32463
On September 13,2011,the Commission issued Order No.32358,Final Order on
Reconsideration.The Order re-affirmed the Commission’s previous determination in Order No.
32301 that TracFone Wireless,Inc.(“TracFone”or “Company”)is responsible for payment of
fees required by the Idaho Telephone Assistance Program Act (“ITSAP”).With respect to
payment of fees required by the Idaho Emergency Communications Act (“IECA”),the Order
provided that TracFone could either “remit the applicable fees,or seek an official ruling from the
IECC (Idaho Emergency Communications Commission),or another tribunal with relevant
jurisdiction,as to whether the fees applied....“Order No.32358 at 11-12.
On October 28,2011.TracFone filed a Notice of Appeal of Reconsideration Order
No.32358 with the Idaho Supreme Court.Docket No.3933 1-2011.In its Appeal,the Company
alleges that the Commission erred by denying TracFone’s Application for Designation as an
Eligible Telecommunications Carrier (“ETC”)due to non-payment of fees required by ITSAP,
Idaho Code §56-901,et seq.,and the IECA,Idaho Code §3 1-4801,et seq.
Subsequent to the filing of TracFone’s appeal,Commission Staff (“Staff’)and
TracFone (hereinafter collectively referred to as ‘the Parties”)engaged in negotiations to
determine whether the Parties could reach a reasonable compromise that would comport with the
Commission’s Orders.
NOTICE OF PROPOSED SETTLEMENT
YOU ARE HEREBY NOTIFIED that the Parties have agreed to a Settlement
Stipulation and present the following terms for Commission approval:
1.TracFone hereby agrees that it will remit,to the ITSAP Administrator,
ITSAP fees retroactive to January 1,2011,calculated in accordance with
Idaho Code §56-904.TracFone will continue to do so each month
thereafter,unless the ITSAP Administrator authorizes a less frequent
remittance schedule pursuant to Idaho Code §56-904(3).Payment of
NOTICE OF PROPOSED SETTLEMENT
ORDER NO.32463
such fees,including past due amounts,shall be remitted by TracFone to
the ITSAP Administrator within fourteen (14)days of a final Commission
Order approving the Stipulation and conditionally designating TracFone as
an ETC.
2.With respect to the applicability of fees required by the IECC,TracFone
agrees to file a Declaratory Judgment Action in State District Court
requesting a determination as to whether TracFone should be required to
pay an “emergency communications fee”pursuant to Idaho Code §31-
4804.Within the 30 days following the filing of said action,the
Commission will enter an Order designating TracFone as an ETC pursuant
to 47 U.S.C.§214(e)(2).for the limited purpose of providing Lifeline
service to qualified low-income Idaho consumers.TracFone will file and
prosecute in the District Court of the Fourth Judicial District a Complaint
for a Declaratory Judgment to determine the applicability of the IECC fees
to its prepaid wireless service in Idaho.TracFone has attached a draft of
its suit for a Declaratory Judgment to the Stipulation.The Complaint shall
name the State of Idaho and the IECC as respondents and the Complaint
shall also be served upon the Association of Idaho Cities and the Idaho
Association of Counties.TracFone agrees to participate in such
proceeding in good faith.Notwithstanding TracFone’s commitment to file
a Complaint for Declaratory Ruling described in this paragraph,nothing
herein shall preclude either Party from seeking resolution of issues
regarding fees administered by IECC by other means,including,but not
limited to,pursuit of legislation.
3.The Parties hereby agree that TracFone’s Application for designation as an
ETC in Idaho complies with all of the relevant criteria and requirements
for designation as an ETC under Section 214(e)of the federal
Communications Act of 1934,as amended.47 U.S.C.§2 14(e).
4.The Parties hereby agree that the foregoing agreements by TracFone
comply with the spirit and intent of Commission Order No.32358.and
constitute substantial compliance therewith.The Parties further agree that,
subject to this Stipulation,designation of TracFone as an ETC pursuant to
47 U.S.C.§214(e)(2)for the limited purpose of providing Lifeline service
to low-income Idaho households will serve the public interest.
5.Once designated as an ETC.TracFone shall have the same entitlement to
receive support from the ITSAP fund as do other ETCs who provide
Lifeline service in Idaho.TracFone herein acknowledges that designation
as an ETC in Idaho is subject to annual review.
6.In the event that the District Court determines that TracFone is subject to
IECC fees,TracFone agrees to reimburse the IECC,or other agencies astheCourtdeemsappropriate,any past due fees dating from Jan 1,2011.If
NOTICE OF PROPOSED SETTLEMENT
ORDER NO.32463 2
TracFone does not reimburse the IECC and elects to seek judicial review
of an adverse ruling by the District Court that the Company owes 1ECC
fees.TracFone agrees that the Commission may revoke TracFone’s
designation as an ETC,pending the outcome of the subsequent judicial
review.
7.The Parties agree to work in a cooperative manner,and with the
Department of Health and Welfare,to establish Lifeline customer
enrollment processes which neither favor nor disfavor any provider of
Lifeline service and which make it reasonably practicable for Idaho
consumers to enroll in the Lifeline program of their choice,including
TracFone’s SafeLink Wireless program.
8.Accordingly,the Parties request that the Commission enter its Order
approving the Stipulation and designating TracFone as an Eligible
Telecommunications Carrier in Idaho.
9.Upon entry of an Order designating TracFone as an ETC in idaho,
TracFone agrees to promptly file with the Supreme Court of Idaho a
Stipulation of Dismissal of its appeal,Docket No.39331-2011,with each
party to bear its own costs.
YOU ARE FURTHER NOTIFIED that the Settlement Stipulation and the Company’s
Application,together with supporting workpapers.testimonies and exhibits in Case No.TFW-T
09-01 have been filed with the Commission and are available for public inspection during regular
business hours at the Commission offices,472 W.Washington Street.Boise,Idaho.The
Settlement Stipulation and the Company’s Application may also be viewed on the Commission’s
web site,www.puc.idaho.gov,by clicking on “File Room”and then “Telephone Cases”under
the corresponding case number,TFW-T-09-0 1,for this proceeding.
YOU ARE FURTHER NOTIFIED that the Commission is not bound by any
settlement reached by the Parties.The Commission will independently review any proposed
settlement to determine whether the settlement is just,fair and reasonable,and in the public
interest,or otherwise in accordance with law or regulatory policy.The Commission may accept
the settlement,reject the settlement,or state additional conditions under which the settlement
will be accepted.IDAPA 31.0l.0l.274-.276.
NOTICE OF PROPOSED SETTLEMENT
ORDER NO.32463 3
ORDER
IT IS HEREBY ORDERED that persons interested in submitting written comments
regarding the proposed Settlement Stipulation should do so within 21 days of the service date of
this Order.
DONE by Order of the Idaho Public Utilities Commission at Boise,Idaho this
day of February 2012.
ATTEST:
r i:/
JJan D Jewell
Cbmmission Secretary
O:TFW-T-09-Olnpl 1_Settlement
NOTICE OF PROPOSED SETTLEMENT
ORDER NO.32463
MACK A.REDFORCOMMISSIONER
L
MARSHA H.SMITH,COMMISSIONER
(1 ‘
PAUL
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