20170912Motion to Dismiss.pdf

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,/[ [)SEAN COSTELLO
DEPUTY ATTORNEY GENERAL
IDAHO PUBLIC UTILITIES COMMISSION
472 WEST WASHINGTON STREET
PO BOX 83720
BOISE, rD 83720-0074
Idaho Bar No. 8743
Tele: [phone]
Fax: [phone]
E-mail: [e-mail]
IN THE MATTER OF THE APPLICATION
OF 365 WIRELESS, LLC FOR A
CERTIFICCATE OF PUBLIC
CONVENIENCE AND NECESSITY TO
PROVIDE LOCAL EXCHANGE SERVICES
WITHIN THE STATE OF IDAHO.
Attorney for Commission Staff
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
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CASE NO. THW.T-12-01
COMMISSION STAFF'S
MOTION TO DISMISS
The Staff of the Idaho Public Utilities Commission by and through its attorney, and in
accordance with Rules of Procedure 56 and 256, hereby moves the Commission for an Order
dismissing this case without prejudice because the Application in this case is deficient, not
actively being prosecuted and moot. See IDAPA 31.01.01.056.03 and 31.01.01.256.
BACKGROUND
On April 18,2012,365 Wireless, LLC (the Company) applied to become a facilities-
based competitive local exchange and interexchange carrier in Idaho pursuant to ldaho Code $
62-615. At that time, 365 Wireless was effectively incorporated through the Idaho Secretary of
State's office.
In its Application the Company included, among other things, certificates of
organization and qualification to conduct business in Idaho, financial documentation, income
statements, and illustrative tariffs. However, Commission Staff determined that the Application
was incomplete or otherwise deficient and, over the past four years, attempted to work with the
Company to address Staff s perceived deficiencies in the Application.
However, the Company filed a Withdrawal of Foreign Registration Statement with
the Office of the Secretary of State of Idaho on June 24,2016. The Company's Statement of
1STAFF'S MOTION TO DISMISS
Withdrawal was found to conform to Idaho law by the Secretary of State and the Company is no
longer allowed to transact business in Idaho.
Staff attempted to communicate with the Company for a final time on Wednesday,
June 21, 2017, in an email communication following a phone call in which the Company agreed
to withdraw its 2012 Application. The email stated that if Staff did not receive further
instructions from the Company by June 26,2017 , it would take steps to dismiss Case No. THW-
T-1 2-0 1 without prejudice.
ARGUMENT
Staff found the Company's Application to be deficient on its face and the Company
failed to alleviate Staff s concerns or refile its Application or work with Staff in order to reach a
compromise or supplement its original Application. The Commission has the authority to return
or dismiss a defective, insufficient, or late application. See IDAPA 31.01.01.065.
In addition, a case is "moot when 'the issues presented are no longer live or the
parties lack a legally cognizable interest in the outcome."' Idaho Sch. For Equal Educ.
Opportunityv. Idaho State Bd. Of Educ.,l28 Idaho 276,281,912P.2d644,649 (1996) (quoting
Bradshaw v. state,120 Idaho 429,432,816 P.2d 989 (1991).
The Company's Application was insufficient in its original form and is now over four
years old and contains outdated and insufficient information which has left the case docket in an
inactive status for much of that time. Further, the Company is no longer a registered, active
business association in Idaho. Finally, the Company did not respond or withdraw its Application
by June 26,2017, a date agreed to by Staff and the Company. At this time, the Company would
be best served by (a) registering to conduct business in Idaho, and (b) submitting a new, updated,
accurate, and complete Application.
As a result of the Company's lack of response to Staff s inquiries over the years, the
age and inactivity of the case and the inability of the Company to conduct business in Idaho,
there is no need for the Commission to further consider the Company's pending Application.
RE,QUESTED RELIEF
For the foregoing reasons, Commission Staff asks the Commission for an Order
dismissing this case without prejudice on the grounds provided above.
2STAFF'S MOTION TO DISMISS
Respectfully submitted this lzth day of September 2017.
Sean Costello
Deputy Attorney General
N:THW-T- I 2-01_sc_Motion to Dismiss
aJSTAFF'S MOTION TO DISMISS
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY THAT I HAVE THIS 12TH DAY OFSEPTEMBER2OI],
SERVED THE FOREGOING COMMISSION STAFF'S MOTION TO DISMISS, IN
CASE NO. THW-T.I2-OT, BY MAILING A COPY THEREOF, POSTAGE PREPAID,
TO THE FOLLOWING:
Clive Marsh
Chief Financial Officer of 365 Wireless, LLC
1500 Trotters Cove
Atlanta, Georgia 30338
Email. cmarsh@3 65wireless.net
SECRETARY
4STAFF'S MOTION TO DISMISS
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