20091109Supplement to Application.pdf

John R. Hammond, Jr., ISB No. 5470
Fisher Pusch & Alderman LLP
U.S. Ban Plaza, 5th Floor
101 S. Capitol Boulevard, Suite 500
Post Office Box 1308
Boise, ID 83701
Telephone: [phone]
Facsimile: [phone]
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l809 NOV -9 PM~: 39
Attorneys for Time Warner Cable
Information Services (Idaho), LLC
Before the
IDAHO PUBLIC UTILITIES COMMISSION
Application of )
)
)
)
)
)
Fora Certificate of Public Convenience and )
Necessity to Provide Competitive. Facilities- )
Based Local and Interexchange )
Telecommuncations Services Within )the State of Idaho )
)
TIME WARNER CABLE
INFORMTION SERVICES
(IDAHO), LLC Docket No. TIM-T-08-01
SUPPLEMENT TO APPLICATION
FOR A CERTIFICATE OF PUBLIC
CONVENIENCE AND
NECESSITY
APPLICATION OF TIME WARNER CABLE
INFORMATION SERVICES (IDAHO), LLC
Time Warer Cablelnformation Services (Idaho), LLC, d//a Time Warer Cable
("TWCIS"), by and through its attorneys, hereby files this supplement to its Application
for a Certificate of Public Convenience and Necessity ("CPCN") to provide competitive
facilties-based local and interexchange telecommuncations services statewide within the
State of Idaho. TWCIS also files its proposed tariff with its supplement to replace the
previously fied tariff that is in this docket. TWCIS fied its Application with the Idaho
Public Utilities Commission (the "Commission") on November 14,2008.
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TWCIS has met with members of the Commission Staff (the "Staff') to discuss its
Application in the interest of resolving any concerns about TWCIS's entitlement to a
CPCN. This Supplement sets fort additional reasons why TWCIS should be granted a
CPCN, including the following:
· TWCIS's Application and the services TWCIS proposes to provide satisfy the
requirements to be granted a CPCN by the Commission set forth in Commission
Final Order 26665, Commission Rule of Procedure 111, and Idaho Code § 61-
526.
· While Title 62 of the Idaho Code relieves TWCIS from any obligation to obtain a
CPCN, nothing in that Title remotely bars TWCIS from obtaining a CPCN
voluntarly.
· Granting TWCIS a CPCNwill promote competition and benefit consumers,
consistent with the core. principles of the Telecommunications Act of 1996 and
the Idaho Telecommuncation. Act of 1988. By contrast, finding TWCIS
ineligible for a CPCN based on a narow construction of Titles 61 and 62 of the
Idaho Code would conflct with federal law and policy, as well as state law
promoting entr by facilities-based competitors.
F or all of these reasons, and based on the information set forth in its Application,
TWCIS respectfully requests that the Commission grant TWCIS a CPCN pursuant to
Idaho Code §§ 61-528 through 61-528, Commission Rule of Procedure 111 and Order
No. 26665. The grant of a CPCN would be consistent with the action of many other state
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commissions. i TWCIS believes that a formal hearing is not necessar in this matter.
However, TWCIS is prepared to submit the pre~fied direct testimony of Vincent
Paladini, Senior Counsel, Time Warer Cable, in support of its Application, to the extent
necessary.
I.
TWCIS HAS MET THE REQUIREMENTS FOR A CPCN
The Commission is vested with the authority to review the applications of public
utilities for CPCNs that will operate in the State ofIdaho and to grant such CPCN s where
the applying company has met the qualifications set fort in the Idaho Code, Commission
Rules and Orders No. 26665. See Idaho Code §§ 61-526-528; Commission Rule of
Procedure 31.01.01.111 & Commission Final Order26665. In Commission Final
Order No. 26665 theComiission. streamlined the process for telecommunications
companies seeking a CPCN in Idaho, requiring that they s\lbmit the following
information to the Commssion:
1) The name, address and form of the business;
2) The date on which applicant proposes to begin construction or anticipates it will
begin to provide service. A written description of customer classes and customer
service ( s) that the applicant proposes to offer to the public;
3) The applicant's proposed service territory;
4) Curent detailed financial balance.sheets of the applicant;
5) The applicant's latest anual report;
6) Maps of where the applicant proposes to provide service;
i The attched Exhibit A contains a lìst of the state authorizations TWCIS's competitive local exchange
carier afflìates have obtained in other jursdictions.
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7) Proposed tariffs and price lists;
8) Contact information for the applicant;
9) Whether or not the applicant proposes to require advanced deposits from
customers.
Commission Final Order No. 26665 at pp. 3-8.
TWCIS fied the foregoing information with the Commission through its Application
and attachments thereto. Accordingly, TWCISsubmits that it has met the requirements
to be granted a CPCN in Idaho.
II.
TWCISHAS PROPOSED TO OFFER A BASIC LOCAL EXCHANGE
SERVICE
Through informal discussions with the Commission Staff (the "Staff'), TWCIS
understads that the Staff was not inclined to recommend grant of a CPCN based. on the
view that TWCIS had not included basic local excliange service among its proposed
tariffed service offerings. In fact, TWCIS has proposed to offer a service that should be
considered.a form of basic local exchange service.
Idaho Code §62-603(1) defines "basic local exchange service" as:
(T)he provision of access lines to residential and small business customers
with the associated transmission of two-way interactive switched voice
communication within a local exchange callng area.
Idaho Code § 62-603(1) see also Idaho Public Utilties Commission Title 62
Telephone Corporation Rules, 31.42.01.005.01. TWCIS's Local Interconnection
Service, described in Section 3.3 of its proposed tarff (attached hereto as Exhibit B),
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falls within the parameters of this statutory definition. Specifically, Local
Interconnection Service enables two-way interconnection between the facilities of
TWCIS's customers and the public switched telephone network ("PSTN"). Local
Interconnection Service wil be offered on a wholesale basis to facilities-based providers
of interconnected VoIP services and will provide, among other things, the transport and
termination of voice calls within a local callng area. These services will be used to
connect TWCIScustomers to the PSTN, thus enabling two-way interactive switched
voice communications within the relevant local exchange callng area using soft switch
technology. Local Interconnection Service wil also provide TWCIS's interconnected
VoIP provider customers with access to domestic and international toll services, operator
services, telephone number resources, 911 callng, and related services and featues. As
such, Local Interconnection Service provides customers with the "transmission of two-
way interactive switched voice communication within a lûcal exchange callng area."
This service will be used by facilities-based wholesale service providers to ûffer retail
interconnected VoIP service to residential and small business customers in Idaho in
competition with incumbent local exchange carers. Thus, TWCIS's services will enable
other service providers to offer residential and small business customers a competitive
choice in telephone services, which in tur will lead to consumer benefits in the form of
reduced rates and increased quality of service.
The foregoing description demonstrates that TWCIS intends to provide services
that fall within the definition of "basic local exchange service" pursuant to Idaho Code §
62-603(1). In light of this information, and in consideration of the statement of
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qualifications for a CPCN set forth in TWCIS's Application, TWCIS respectfully
reiterates its request that the Commission grant it a CPCN.
III.
NOTHING IN TITLE 62 REMOTELY PROHIBITS THE GRANT OF A CPCN
TO TWCIS
While TWCIS believes that its Local Interconnection Service qualities as a basic
local exchange service for the reasons set forth above, TWCIS would be entitled to a
CPCN in any event. In its discussions 'with TWCIS, Staff suggested that TWCIS must
provide a basic local exchange service to obtain a CPCN because Idaho Code § 62-
604(l)(a) provides that telephone corporations that did not have a CPCN as of
January 1, 1988 and that do not provide basic local exchange service shall be subject to
Title 62 and furter shall be exempt from Title 61. But an exemption frOm the
requirements Title 61 does not mean that a competitive entrant is foreclosed from
voluntarily seeking certification under that title. Indeed, there is no provision ofIdaho
law-including Idaho Code § 61~526, Commission Rule of Procedure 1J 1 (IDAPA
3l.01.0l.1Jl), and Commission Final Order No. 26665-that explicitly limits the grant
of a CPCN to a carier that provides basic local exchange service.3
A review of the legislative history of Title 62 shows that its primary purose was
to allow certficatedrate-regulated telephone corporations to elect whether to remain rate
regulated for telecommunications services other than basic local.exchange service (such
as for interLATA services). See Statement of Purpose RS21609CI, Telecommunications
3 As discussed in the following section, this absence of any express limitation, together with federal law
prohibiting barriers to entry and promoting local telephone competition, compels a constrction of the
Idaho Code that results in TWCIS's entitlement to a CPCN.
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Regulatory Reform, H.B. 687 (1988); Statement of Purpose RS 14965, H.B. 224 (2005).
Title 62 did not contemplate and was not designed to address the wholesale
telecommunications services TWCIS intends to provide. Nothing in the legislative
history of the 1988 legislation or the 2005 amendments thereto remotely. suggests that a
competitive carrier providing a service other than basic local exchange should be
precluded from obtaining a CPCN.
Finally, while theStaírhas suggested that TWCIS may provide only those
specific services that are authorized in granting a CPCN, TWCIS submits that Idaho law
contains no such limitation. Rather, if TWCIS is granted aCPCN, as it believes it must
be, then it will be free to provide any additional services that it chooses to tarff.
iv.
SECTION 253 OF THE COMMUNICATIONS ACT, BACKED BY FEDERAL
AND STATE POLICIES FA VORINGCOMPETITION, PRECLUDES A
NARROW READING OF TITLES 61 AND 62
While a straightfoward application of the relevant provisions supports granting a
CPCN, TWCIS's entitlementto a certificate is all the more clear in lightof(a) Section
253 ofthe Communications Act of 1934, as amended (the "Act"), which prohibits
bariers to entry, and (b ) the strong federal and state policies favoring entry by facilities-
based competitors such as TWCIS. Indeed, tinding TWCIS ineligible for aCPCN based
on a cramped reading. of Titles 61 and 62 would ru afoul of federal law and undercut
important policy objectives.
A key pilar in Congress's effort to open local telecommunications markets to
competition was its enactment of Section 253 of the Act, which provides: "No State or
local statute or regulation. . . may prohibit or have the effect of prohibiting the ability of
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any entity to provide any interstate or intrastate telecommunications service." 47 U.S.c.
§ 253(a). Unless a state requirement that has the efÌect of prohibiting entr is "necessary
to preserve and advance universal service, protect the public safety and welfare, ensure
the continued quality of telecommunications service, (or) safeguard the rights of
consumers"-and there has been no suggestion (nor could there be) that denying TWCIS
a CPCN is necessary to fulfill such public interest goals--then such an entr barrier must
be preempted. 47 U.S.C. §§ 253(b) (emphasis added), (d).4
The FCC's decisions applying Section 253 expressly confirm that state
certification requirements may not be constred in a manner that prohibits entr by
competitive telecommunications cariers such as TWCIS.5 Moreover, FCC precedent
leaves no doubt that TWCIS's Local Interconnection Service qualifies both as a
"telecommunications service" and a "local exchange service." The TWC Interconnection
Order clarified that "providers of wholesale telecommunications services en joy the same
4 See also
Public Utilty Commission qf'Texas, Memorandum Opinion and Order, 13 FCC Rcd 3460, 3470
ir 22 (1997) ("Texas Preemption Order") (Section 253 "expressly~empowers--indeed, obligates-the
Commission to remove any state or local legal mandate that 'prohibit( sJ or has the effect of prohibiting , a
firm from providing any interstate or intrastate telecommunications service."); id.at 3480 ir 41 (Congress
enacted Section 253 "to ensure that no state or local authority could erect legal bariers to entry that would
potentially frstrate the 1996 Act's explicit goal of opening local markets to competition."). The FCC has
interpreted Section 253 broadly as a "commandLl . . . to sweep away not only those state or local
requirements that explicitly and directly bar an entity from providing any telecommunications service, but
also those. . . that have the practical effect of prohibiting an entity from providing service." Jd. at 3470 ir
22,
5 See, e.g., T~as Preemption Order, 13 FCC Rcd at 3511 ir 107 (holding that Texas regulation that had
the effect of prohibiting certifcation was "in direct conflct with with section 253(a), which is designed to
prevent such restrictions on entry"); Silver Star Telephone Company, Inc. Petitionjòr Preemption and
DeclaratoryRuling, Memorandum Opinion and Order, 12 FCC Rcd 15639, 15655-56 irir 37-38 (1997)
(striking downstate policy that delayed the grant of CPCNs in rural areas), atJ'd, RT Communications, Inc.
v. FCC, 201 F.3d 1264 (10th Cir. 2000); AVR, L.P. d/b/a H)perion of Tennessee, L.P., Petition for
Preemption of Tennessee Code Annotated § 65-4-201 (D) and Tennessee Regulatory Authority Decision
Denying l~vperion 's Application Requesting Authority to Provide Service in Tennessee Rural LEC Service
Areas, Memorandum Opinion and Order, CC Docket No. 98-92, 14 FCC Rcd i 1064, 11071 ir 15 (1999)
(same).
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rights as any "telecommunications carrer' under... the Act.,,6 Indeed, that decision
confinned that the precise telecommunications services that TWCIS proposes to provide
in Idaho-"'transport for the origination and termination on the PSTN through. . . .
interconnection agreements with incumbent LECs"--ualify as "wholesale
telecommunicationsservices,,,7 and, more specifically, local exchange services.8
Accordingly, because TWCIS wil provide local exchange services as a matter of federal
law, any decision denying authority to operate as a local exchange carer within Idaho
would be subject to preemption under Section 253.9
Even apart from the dictates of Section 253, the strongly pro-competitive
principles of federal and state law compel reading Titles 61 and 62 in a manner that
supports granting a CPCN to TWCIS. 10 The Federal Telecommunications Act of 1996
and the IdahoTelecommunications Act of 1988 (the "Idaho Act") were enacted in large
par to promote. competition in the telecommunications marketplace. As explained
above, Congress sought to open up markets to competition by removing unecessary
regulatory barers to entry. The Conference Report states that the Act:
6 Time . Warner Cable Request/or Declaratory Ruling that Competitve Local Exchange Carriers May
Ob,ain Interconnection Under Section 251 o/the Communications Act of1934, as Amended, to Provide
Wholesale TelecommimicationsSenJices toVoIP Providers, Memorandum Opinion and Order, 22 FCC
Rcd 3513, 3517 ir 9 (WCB 20()7) ("TWC Interconnection Order").7 ¡d. at3513-14~2.
8 See, e.g., id. at3522iJ 16n.4(j (discussing duties of
"wholesale local exchange carriers" providing the
interconnection-related services at issue); id. at 3513 ir 1 (noting that wholesale carriers are entitled to the
rights undcr scction 251(b), vvhichapplies only to local exchange calTiers).
9 As noted above, while the Commission is authorizcd to deny cntr to the cxtent necessary to fulfill the
public interest objectives in Section 253(b), it could not reasonably find that TWCIS's entr would han
the public interest. Moreover, such a restriction would have to be applied to all cariers in a competitively
neutral manner. See 47 U.S.C. § 253(b).
io C/. e.g., United States Telecom Ass'n v. FCC, 359 F.3d 554, 576 (D.C. Cir. 2004) (stating that the goal
of promoting facilities-based competition must guide the FCC's implementation of the Communications
Act).
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providers) for a pro-competitive, de~regulatory national policy framework
designed to accelerate rapidly private sector deployment of advanced
services and information technologies and services by opening all
telecommunications markets to competition....
Conference Report, Telecommunications Act of 1996, House of Representatives, 104th
Congress, 2d Session, H. Rept. 104~458, at p. 1 (emphasis added). Similarly, the Idaho
Act states:
(E)ffective competition thoughout a local exchange callng area wil
involve a significant number of customers having both service provider
and service option choices and that actual competition means more than
the mere .presence of a competitor. Instead, for there to be actual..and
effective competition there needs to be substative and meaningfu
competition throughout the incumbent telephone corporation's local
exchange callng area.
Jdaho Code § 62-601(2).
Granting TWCIS a CPCN will promote these important objectives. TWCISwill
provide facilities-based wholesale and retail intrastate telecommunications services to
commercial customers in Idaho. These services wil, in tum, be used to make available new
and competitive service offerings that wil be available to residential and commercial
consumers in Idaho in furtherance of the public interest. It is well-established that increased
competition leads to lower prices, service innovation, more responsive customer service, and
other benefits that, over time stimulate consumer utility and demand for the services supplied
by all providers, including. the Incumbent Local Exchange Carriers. Moreover, Incumbent
Local Exchange. Carriers respond to robust competition by improving the. effciency ()f their
operations and expanding the market to which they offer their services, ultimately benefiting
consumers and the Idaho economy statewide.
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In sum, granting TWCIS a CPCN wil be consistent with the competition objectives
embodied in federal and state law, as it wil allow TWCIS to obtain necessary
interconnection agreements and provide competitive telecommunications services in Idaho.
TWOIS's entry wil lead to an increase in the. range of competitive choices available to user.s
of telecommunications services and create an incentive for existing service providers to
improve quality and decrease prices, thereby creating multiple public benefits. The
Commission should evaluate TWCIS's Application and apply the law in arnannerconsistent
with the overarching objective of promoting competitive entry and the consumer benefits that
flow from it.
CONCLUSION
The Application and this Supplement demonstrate that it would be in the public
interest to grant TWCIS a CPCN to provide competitive facilities..based local and
interexchange telecommunications services within the State ofIdaho.
WHEREFORE, TWCIS respectfully requests that the Commission:
1. Process this Application by Modified Procedure under the Commission's
Rules of Procedure;
2. Grant TWCIS' s request fora CPCN to provide competitive facilities-
based local and interexchange telecommunications services within the State of Idaho; and
3. Grant such other relief as it deems necessary and appropriate.
Dated this i day of Nov em ber, 2009.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this .- day of November, 2009, a true and
correct copy of the foregoing document was served on the following individuals by the
method indicated below:
Jean Jewell
IDAHO PUBLIC UTILITIES COMMISSION
472 W. Washington St.
PO Box 83720
Boise ID 83720-5983
( ) U.S. Mail
( ) Facsimile [phone]
( ) Overnight Delivery
,V Messenger Delivery
I ) Email
Neil Price
Deputy Attorney General
IDAHO PUBLIC UTILITIES COMMISSION
472 W.Washington St.
PO Box 83720
Boise ID 83720-5983
( ) U.S. Mail
( ) Facsimile [phone]
( ) Overnight Delivery
V1 Messenger Delivery
( ) Email
Exhibit A
List ofTWCIS's Competitive Local Exchange Carier Affiliates Have Obtained in Their
Jurisdictions
Description of the Regulatory Status of the Time Warner Cable Affliated CLECs
Time Warer Cable affiliates have been certificated by certain states to provide
local and interexchange telecommunications services, as follows:
In 1993, Applicant's affiiate, Time Warer Cable ResCom of New York, LLC,
was certificated by the New York Public Service Commission to provide local and
interexchange telecommunications services in New York.
On Februar 11, 2003, Applicant's affliate, Time Warner Cable Information
Services (Maine), LLC, was certificated by the Maine Public Utilities Commission to
provide local and interexchange telecommuncations services in Maine.
On July 24,2003, Applicant's affiliate, Time Warer Cable Information Services
(North Carolina), LLC, was certificated by the North Carolina Utilities Commission to
provide local and interexchange telecommuncations services in North Carolina.
On Januar 21, 2004, Applicant's affiliate, Time Warer Cable Information
Services (Texas), L.P., was certificated by the Texas Public Utility Commission to
provide local and interexchange telecommuncations services in Texas.
On Februar 3, 2004, Applicant's affliate, Time Warer Cable Information
Services (Kansas), LLC, was certificated. by the Kansas Corporation Commission to
provide local and interexchange telecommunications services in Kansas.
On March 12, 2004, Applicant's affiliate, Time Warer Cable Information
Services (Missouri), LLC, was certificated by Public Service Commission of Missouri to
provide local and interexchange telecommunications services in Missour.
On March 16, 2004, Applicant's affiliate, Time Warer Cable Information
Services (Californa), LLC, was certificated by the California Public Utilties
Commission to provide local and interexchange telecommuncations services in
Californa.
On May 24, 2004, Applicant's affliate, Time Warner Cable Information Services
(South Carolina), LLC, was certificated by the South Carolina Public Service
Commission to provide local and interexchange telecommuncations services in South
Carolina.
On June 30, 2004, Applicant's affliate, Time Warner Cable Information Services
(Wisconsin), LLC, was certificated by the Wisconsin Public Service Commission to
provide local and interexchange telecommunications services in Wisconsin.
On August 26, 2004, Applicant's affiiate, Time Warer Cable Information
Services (New Hampshire), LLC, was certificated by the New Hampshire Public Utilities
Commission to provide local telecommunications services in New Hampshire.
On October 22, 2004, Applicant's affiliate, Time Warer Cable Information
Services (Hawaii), LLC, was certificated by the Hawaii Public Utilities Commission to
provide local and interexchange telecommunications services in Hawaii.
On November 23, 2004, Applicant's affiiate, Time Warer Cable Information
Services (Nebraska), LLC, was certificated by the Nebraska Public Service Commission
to provide local and interexchange telecommunications services in Nebraska.
On April 4, 2005, Applicant's affiiate, Time Warner Cable Information Services
(Massachusetts), LLC, fied with the Massachusetts Deparment of Telecommunications
and Energy its Statement of Business Operations and initial tarff.
On August 1, 2005, Applicant's affliate, Time Warer Cable Information
Services (Ohio), LLC, was certificated by the Public Utilities Commission of Ohio to
provide local and interexchange services in Ohio.
On August 5, 2005, Applicant's afliate, Time Warer Cable Information
Services (West Virginia), LLC, was certificated by the Public Service .Commission of
West Virginia to provide local and interexchange services in West Virginia.
On August 10, 2005, Applicant's affiliate, Time Warer Cable Information
Services (Indiana), LLC, was certificated by the Indiana Utility Reguatory Commission
to provide local and interexchange services in Indiana.
On April 28, 2006, Applicant's affiliate, Time Warer Cable Information Services
(Kentucky), LLC was certificated to provide local and interexchange services in
Kentucky.
On June 27,2006, Applicant's affiliate, Tiine Warer Cable.Information Services
(Arizona), LLC was certificated to provide limited local services in Arzona.
On February 27, 2008, Applicant's affiiate, Time Warer Cable. Information
Services (Alabama), LLC was certificated to provide local and interexchange services in
Alabama.
On August 31, 2008, Applicant's affliate, Time Warer Cablé Information
Services (Washington), LLC was registered as a competitive telecommuncations
company in the State of Washington.
On October 28, 2008, Applicant's affiiate, Time Warer Cable Information
Services (Colorado), LLC was certificated to provide local and interexchange
telecommunications services in Colorado.
On Janua 28, 2009, Applicant's affiliate, Time Warer Cable Information
Services (New Jersey), LLC was certificated to provide local and interexchange
telecommunications services in New Jersey.
Time Warer Cable affiliates have fied applications for authority to provide local
and interexchange telecommunications in certain states, as follows:
On January 23, 2008, Applicant's affliate, Time Warer Cable Information
Services (Arizona), LLC, filed an application before the Arzona Corporation
Commission to provide local and interexchange telecommunications services in Arzona.
That application remains pending.
On November 14, 2008, Applicant's affiliate, Time Warer Cable Information
Services (Idaho), LLC, fied an application before the Idaho Public Utilties Commission
to provide local andinterexchange telecommunications services in Idaho. That
application remains pending.