20100129Reply Comments.pdf

John R. Hamond, Jr., ISB No. 5470
Batt 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]
REef':!..1 '",
2010 JAN 29 PH I: 15
Attorney for Time Warner Cable
Information Services (Idaho), LLC
Before the
IDAHO PUBLIC UTILITIES COMMISSION
Application of )
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TIME WARNER CABLE INFORMATION )
SERVICES (IDAHO), LLC )
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Case No. TIM-T-08-01
For a Certificate of Public Convenience. and
Necessity to Provide Competitive Facilities-
Based Local and Interexchange
Telecommunications Services within the
State of Idaho
RESPONSE TO COMMENTS OF
COMMISSION STAFF
Time Warer Cable Information Services (Idaho), LLC, d//a Time Warner Cable
("TWCIS"), by and through its attorneys, hereby submits this response to the comments filed by
Commission Staff on December 28,2009 in this proceeding. On November 14,2008, TWCIS
fied an Application for a Certificate of Public Convenience and Necessity ("CPCN") to provide
competitive facilities-based local and interexchange telecommunications services within the
State of Idaho. Following informal discussions with Commission Staff, TWCIS fied a
Supplement to that Application on November 9,2009, fuher explaining the justification for
granting a CPCN. As the Staff has acknowledged, the Application and Supplement contain "all
requisite information" to facilitate grant of the requested CPCN by the Idaho Public Utilities
Commission (the "Commission".l
The Staff Comments assert that TWCIS is not a "telephone corporation" under Idaho law,
and thus is not obligated to obtain a CPCN to operate.2 As explained below, however, the Staff
Comments fail to appreciate thatTWCIS requires a CPCN in order to interconnect with
incumbentLECs and to exercise other rights as a telecommunications carier. Moreover, even
assuming arguendo that TWCIS is not compelled to obtain a CPCN under Idaho law, the Staff
Comments overlook the fact that TWCIS is nevertheless permitted to do so. In fact, failure to
grant TWCIS's request would constitute unlawfl discrimination, given the recent grant of
CPCNs to similarly situated carers, and would erect bariers to entr in violation of Section 253
of the Federal Communications Act. The Commission therefore should grant TWCIS a CPCN
as requested in its Application expeditiously.3
I. THE STAFF COMMENTS FAIL TO APPRECIATE THAT TWCIS REQUIRES A
CPCN TO OBTAIN INTERCONNECTION
In its comments, the Staff indicates that it is "somewhat perplexed" by the Application
because, in the Staffs view, TWCIS "is seeking more regulatory oversight than the Staff
believes is waranted," whereas most companies "seek reduced oversight.,,4 To be clear:
TWCIS is not seeking certification for the purose of subjecting itself to additional regulatory
Comments of the Commission Staff at 4.
2 Id.
3
Exhibit A, attached to TWCIS's Supplement contains a list of the state authorizations
TWCIS competitive local exchange affliates have obtained in other jursdictions.
4 Id. at 6.
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oversight by the Commission.5 Rather, TWCIS is seeking a CPCN because, incumbent LECs
need not, and therefore choose not to interconnect with entities that do not hold a CPCN granted
by the relevant state commission. Moreover, carers without a CPCN are disadvantaged in the
exercise of other core rights necessar to provide local exchange services, including access to
telephone numbers and connections with 911 public service answering points ("PSAPs"). While
TWCIS believes that its Application and Supplement made these objectives clear, there should
be no doubt that denial of a CPCN would have the effect of baring TWCIS from providing local
exchange services. As discussed fuher below, such an outcome not only.would be contrar to
the public interest, but would violate federal and state law.
ii. NOTHING IN THE IDAHO CODE PREVENTS THE COMMISSION FROM
GRANTING THE REQUESTED CERTIFICATE
TWCIS's Application and Supplement explain why its Local Interconnection Service
should be classified as a basic local exchange service under Idaho law. See Supplement at pp. 6-
7. Even if the Commission were to. adopt a different classification, however, the Sta Comments
overlook the fact that nothing in the Idaho Code would preclude the grant of a CPCN to TWCIS.
Id. To the contrar, as TWCIS has explained, the Commission has broad authority under the
Idaho Code to "do all things necessar to carr out the spirit and intent ofthe provisions of this
act,,,6 which certainly include actions necessar to ensure that the grant of regulatory flexibility
does not have the perverse effect of depriving a carer of the core inputs it requires to provide
competitive local exchange service.
5 However, it should be noted that TWCIS has previously represented that it would comply
with all applicable rules of the Commission ifit were granted a CPCN. See Application
atp.7.
Idaho Code § 61-501.6
3
The Staff Comments fail to grapple with this argument, taking the view that TWCIS is
exempt from the certification process and that is the end of the matter.7 However, the relevant
question is whether, in light ofTWCIS's need to obtain a CPCN in order to interconnect with
incumbent providers, the law allows the Commission to grant the requested authority. As
TWCIS has explained at length, and the Staff Comments fail to rebut, the Commission plainly
does possess sufficient authority to issue a CPCN to TWCIS.
III. REFUSAL TO GRANT A CPCN WOULD CONSTITUTE UNLAWFUL
DISCRIMINATION AND WOULD BE SUBJECT TO PREEMPTION UNDER
FEDERA LAW
Making matters worse, the Staff Comments propose denying TWCIS's Application
despite the recent grant of CPCN s to several similarly situated carers. . For example, in
September 2007 the Commission granted a CPCN to Eltopia Communications LLC, which, like
TWCIS, stated that it would offer wholesale telecommunications services following certification,
and possibly provide VoIP services at a later date (which would not require certification in any
event).8 More recently, in November 2009 the Commission granted a CPCN to ALECTelecom,
Inc., which stated that it would offer "wholesale switching and interconnection services to other
telephone service providers and similarly-positioned wholesale business customers," and
possibly local telecommunications services at a later date.9 Just like these cariers (among others
that have obtained CPCNs in Idaho), TWCIS initially intends to provide wholesale local
exchange services. TWCIS also will provide retal interexchange services to business customers
7 Comments of the Commission Staff at 6.
See Application of Eltopia Communications LLC for a Certifcate of Public Convenience
and Necessity to Provide Local Exchange and Telecommunications Services, Case No.
ECL-T-07-01, Order No. 30442 (Sep. 24,2007).
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and may later introduce other retail telecommunications services that qualify as "basic." as the
Commission Staffhas defined the term. The Staff Comments identify no conceivable basis for.
distinguishing TWCIS's Application from these cariers' applications, and there is none. Such
discrimination canot be justified and would not be sustained by any court of law.
In addition, denying TWCIS' s request for a CPCN would create a barier to entry in
violation of federal law. As TWCIS noted in its Supplement, a key pilar in Congress's effort to
open local telecommunications markets to competition was its enactment of Section 253 of the
Federal Communications Act, which provides that "(nJo State or local statute orregulation. . .
may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or
intrastate telecommunications service."IO Thus, any interpretation of Titles 61 and 62 of the
Idaho Code that would thwar a competitive carer's ability to enter the Idaho market by
interconnecting with incumbent cariers would be subject to preemption under Section 253. II
More generally, and even apart from the dictates of Section 253, the stronglypto-competitive
principles of federal and state law counsel against any such reading.
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9
See Application of ALEC Telecom, Inc. for a Certifcate of Public Convenience and
Necessity to Provide Local Exchange and Telecommunications Services, Case No. ALE-
T-09-01, OrderNo. 30944 (Nov. 13,2009).
47 U.S.C. § 253(a).
The FCC has made clear that wholesale telecommunications carers are entitled to obtain
interconnection to the same degree as retail cariers. See, e.g., Time Warner Cable
Request for Declaratory Ruling that Competitive Local Exchange Carriers may Obtain
Interconnection under Section 251 of the Communications Act of 1934, as Amended, to
Provide Wholesale Telecommunications Services to VoIP Providers, Memorandum
Opinion and Order, 22 FCC Rcd 3513 (WCB 2007). Accordingly, depriving TWCIS of
that federal right, which is essential to its ability to provide telecommunications services,
would squarely conflct with Section 253.
Cf, 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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In response to these arguments, the Staff says that it "does not see how the state's lack of
regulatory requirements. . . can be viewed as a barrer to entry.,,13 As noted above, that misses
the point: TWCIS of course has never claimed that it would be hared by the absence of
regulatory requirements. Once again, TWCIS is seeking a CPCN so that it can exercise its
federally conferred rights as a competitive local exchange carier, including in paricular the
right to obtain interconnection under Section 251 of the Federal Communications Act.
IV. IF THE COMMISSION DETERMINES THAT A CPCN IS NOT REQUIRED TO
OBTAIN INTERCONNECTION IN IDAHO, IT SHOULD ISSUE A BINDING
ORDER TO THAT EFFECT
A key premise of the Staf Comments is that TWCIS does not require a CPCN to.obtain
interconnection or to exercise related rightS.I4 As explained above, TWCIS is convinced, based
on its substatial experience, that incumbent LECs in fact wil refuse to interconnect with a non-
certificated carer. Therefore, if the Commission does not believe that a CPCN.is or should be
required to obtain interconnection and is deterined towitholdaCPCN on that basis, it should
at least issue an order making unequivocally.clear that TWCISmay interconnect with incumbent
LECs in Idaho and operate as.a wholesale telecommuncations carier regardless of whether it
possesses a CPCN. Any other outcome would subject TWCIS to arbitrary and capricious
treatment vis-à-vis wholesale providers that have obtained a CPCN from this Commission and,
in violation of established law, would deny TWCIS the opportunty to compete.
13 Comments of the Commission Staff at 6.
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CONCLUSION
The Application and the Supplement demonstrate TWCIS's entitlement to obtain a.
CPCN to provide competitive facilities-based local and interexchange telecommunications
services within the State of Idaho.
WHEREFORE, TWCIS respectfully requests that the Commission:
1. Process ths Application by Modified Procedure under the Commission's Rules of
Procedure;
2. Grant TWCIS's request for a CPCN to provide competitive facilties-based local
and interexchangetelecommunications services within the State ofIdaho; and,
3. Grant such other relief as it deems necessary and appropriate.
Dated thi~ day of Januar, 2010.
. Hamond, Jr.
isher Pusch & Alderman LLP
=/
orneyfor Time Warner Cable
Information Services (Idaho), LLC
14 See id. at 2 ("The absence of a CPCN does not preclude TWCIS from entering the Idaho
market as a wholesale service provider, nor should it prevent the Company from entering
into interconnection agreements.") (emphasis added).
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on thi~~ of January, 2010, 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
( J U.S. Mail
( J Facsimile [phone]
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MMessenger Delivery
/( fEmail
Neil Price
Deputy Attorney General
IDAHO PUBLIC UTILITIES COMMISSION
472 W. Washington St.
PO Box 83720
Boise ID 83720-5983
( J U.S. Mail
( J Facsimile [phone]
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.I Messenger Delivery
( J Email
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