20100608Laine Rebuttal.pdf

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John R. Hammond, 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]
RECEWED
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ORlGINAL
Attorney for Time Warner Cable
Information Services (Idaho), LLC
Before the
IDAHO PUBLIC UTILITIES COMMISSION
Application of )
)
TIME WARNER CABLE INFORMATION )
SERVICES (IDAHO), LLC )
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Case No. TIM-T-08-01
Fora Certificate of Public Convenience and
Necessity to Provide Competitive Facilities-
Based Local and Interexchange
Telecommunications Services within the
State of Idaho
REBUTTAL TESTIMONY OF JULIE
LAINE ON BEHALF OF TIME
WARNER CABLE INFORMTION
SERVICES (IDAHO), LLC
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PLEASE STATE YOUR NAME, TITLE, AND BUSINESS ADDRESS FOR THE
RECORD.
My name is Julie Laine and I am Group Vice President, Regulatory of Time Warer
Cable. My business address is 60 Columbus Circle, New York, NY 10023. My
telephone number is [phone] and my email address isjulie.laine(Ðtwcable.com.
HAVE YOU PROVIDED TESTIMONY IN THIS MATTER PREVIOUSLY?
Yes. I provided written testimony on behalf of Time Warer Cable Information Services
(Idaho), LLC ("TWCIS") on May 14,2010.
HAVE YOU REVIEWED THE REBUTTAL TESTIMONY FILED BY COMMISSION
STAFF ON MAY 27,2010, AS AMENDED ON JUNE 3, 2010?
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Yes.
WHAT is THE PURPOSE OF YOUR TESTIMONY?
The purose of my testimony is to respond to: (i) Staffs unsupported assertion that
TWCIS will not provide service to the "public," and therefore is not a "telephone
corporation" eligible to receive a certificate of public convenience and necessity
("CPCN"); (ii) Staffs inaccurate descnption of the services that TWCIS intends to
provide, and consequent failure to appreciate the bariers to entry faced by TWCIS in the
absence of a CPCN; and (iii) Staffs inaccurate descnption of TWCIS's efforts to
interconnect with Venzon in Idaho.
WHAT is STAFF'S LEGAL BASIS FOR CONCLUDING THAT TWCIS'S LOCAL
INTERCONNECTION SERVICE WILL NOT BE PROVIDED TO "THE PUBLIC"?
Staff provides no such basis. Staff merely asserts that it defines "service to the public" to
mean "directly to the consumer or end user and not on a wholesale basis."i
is THERE CONTRARY AUTHORITY ON THIS POINT?
Yes. Like Idaho Code § 61-121(1), the federal Communications Act of 1934, as
amended, defines a "telecommunications service" as one offered "to the public."i Yet,
the Federal Communications Commission has, on numerous occasions, rejected the view
that the reference to "the public" in this statutory definition was intended to exclude
wholesale telecommunications services.3 In fact, the FCC has found that "(ilt is clear. . .
that the definition of telecommunications services . . . includes wholesale services when
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Staff Rebuttl Testimony at 6.
See 47 U.S.C. § 153(46).
See, e.g., Implementation of the Non-Accounting Safeguards of Sections 271 and 272 of the
Communications Act of 1934, as Amended, Second Order on Reconsideration, 12 FCC Rcd 8653, at ~ 33
(1997).
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offered on a common carrier basis.,,4 Thus, the FCC has determined that "providers of
wholesale telecommunications services enjoy the same nghts as any 'telecommunications
carer' under. . . the Act."s
WHY SHOULD THIS COMMISSION ADHERE TO FEDERAL PRECEDENT?
As an inital matter, the FCC is an expert agency that has established precedent in this
area. through careful deliberation over a period of years. The FCC has explained that
wholesa.le cariers that fuish inputs to other service providers are common carers
because they serve the subset of the public that can make use of the relevant offenng, and
cours have upheld those determinations.6 In contrast, Staffs position is entirely
unsupported and at odds with federal and state policy favonng the promotion of
competition. This Commission accordingly should interpret Idaho Code§ 61-121(1) to
be consistent with the well-established and judicially approved federal precedent.
Moreover, Staff's interpretation of Idaho Code § 61-121(1) would effectively preclude
TWCIS from providing, withn the state of Idaho, "telecommunications services" as
defined by the federal Communications Act. Accordingly, any such interpretation
invites, and would merit, preemption under Section 253 of the Act.
HAVE OTHER STATES REJECTED TWCIS'S PROPOSED SERVICES?
No. As TWCIS noted in its direct testimony, Time Warer Cable indirectly controls 26
competitive local exchange carriers (i.e., one in each of 26 different states) that have
obtained a CPCN or equivalent authonty to operate as a local exchange carier, as
provided for under relevant state commission rules. In the aftermath of the TWC
Declaratory Ruling, no state authority has indicated that any Time Warer Cable
4 Time Warner Cable Request for Declaratory Ruling that Competitive Local Exchange Carriers May Obtain
Interconnection Under Section 251 of the Communications Act of1934, as Amended, to Provide Wholesale
Telecommunications Services to VoIP Providers, Memorandum Opinion and Order, 22 FCC Rcd 3513, at ~
11 (2007) ("TWC Declaratory Ruling').
ld at~9.
See Verizon Cal., Inc. v. FCC, 555 F.3d 270, 276 (D.C. Cir. 2009) (rejecting claim that a wholesale carrier
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1 affliated local exchange carier's intention to provide wholesale local
2 telecommunications services would be a reason to deny such authonty. In fact, all of
3 these entities limit their service offenngs to wholesale and commercial customers.
4 Moreover, the local exchange service tariffs and price sheets fied by several of these
5 entities describe the very same service offerings that TWCIS proposes to offer in Idaho.
6 Q:DO YOU AGREE WITH STAFF'S SUGGESTION THAT TWCIS DOES NOT NEED
7 A CPCN AND THAT IDAHO STATUTES ALLOW "EASIER ENTRY INTO THE
8 MARKT THAN THE FEDERAL ACT,,7?
9 A:No. Staff provides no basis for this assertion, but appears to assume, incorrctly, that
10 "the absence of a CPCN does not preclude (TWCIS) from entenng the Idaho market as a
11 wholesale provider."s In fact, the inability of TWCIS to obtain a CPCN has created
12 numerous bariers to entry, which Staff simply chooses to ignore. Of coure, TWCIS
13 would not be pursuing this application for a CPCN if it could enter the market and obtain
14 interconnection and other necessar inputs without such operating authonty.
15 Q:DO YOU AGREE WITH STAFF'S ASSERTION THAT TWCIS SHOULD BE ABLE
16 TO OBTAIN TELEPHONE NUMBERS, ROUTE CALLS, ETC. EVEN WITHOUT A
17 CERTIFICATE?
18 A:No. As an initial matter, Staff concedes its lack of expertise with respect to numbering
19 and related matters.9 This lack of expertise is compounded by Staffs failure to
20 understand the nature of the service that TWCIS will provide, and its relationships with
21 its customers and other service providers. Tellngly, Staff assumes that "the companies
22 that TWCIS provides wholesale service to, the companies providing service to end users,
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serving only one VolP provider could not qualify as a ''telecommunications carier").
Staff Rebuttl Testimony at 7.
Id.8
9 Id. at 1 i ("I am not a numbering subject matter expert. . . .").
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should be able to obtain numbers."10 In fact, TWCIS's customers wil be Voice over
Internet Protocol ("VoIP") and other service providers that themselves lack CPCNs, and
thus have no ability to obtain nuibers or other critical resources themselves. As the FCC
has explained, retail VoIP provîders commonly rely on wholesale providers like TWCIS
to obtaîn nuiberingresources for theîr end users. ii Accordingly, there is no reason to
reject TWCIS's expenence-based arguments in favor of the admittedly uninformed views
of Staff.
IS THE "ADDITIONAL INFORMATION" PROVIDED BY STAFF WITH RESPECT
TO PREVIOUS INTERCONNECTION NEGOTIATIONS BETWEEN TWCIS AND
VERIZON ACCURATE?
No. Verizon has consistently refused to enter into an interconnection agreement with
TWCIS until TWCIS obtains a CPCN. Verizon has not based such refusals on the
understanding thatTWCIS intends to provide retail services. Further, Venzon has never
represented to TWCIS that it would enter înto an interconnection agreement covering
only "wholesale" services. Notably, Staffs rebuttl testimony provides no foundation for
hearsay claîms to the contrar. When TWCIS requested that Staff provide a basis for
these claims, Staff provided only the e-mail attached as Exhibit A. Notably, that e-mail
merely reiterates Venzon's refusal to execute an interconnection agreement with TWCIS
in the absence of a CPCN. Nowhere does that e-mail state that Verizon would enter into
an interconnection agreement with TWCIS coverîng "wholesale" services generally.
More importantly, nowhere does Verîzon represent that it would enter into an
interconnection agreement with TWCIS covenng the specific types of services that
TWCIS intends to offer. Furher, while that e-mail makes oblique references to the
io Id.
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See TWC Declaratory Order at ~ 13 (noting that the Commission precedent has "expressly contemplated
that VolP providers would obtain access to and interconnection with the PSTN through competitive
cariers.").
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availability of "other wholesale and commercial" agreement forms, nowhere does it state
that these forms would not also require TWCIS to obtain a CPCN. In fact, nothing in that
e-mail even remotely suggests that Verizon views TWCIS's intended service as a
"wholesale" service not subject to certification.
DOES THIS CONCLUDE YOUR TESTIMONY?
Yes.
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REceiVED
CERTIFICATE OF SERVICE. ................ ...... .8... D."'.....I./.l.O
ZBllJUI - . rn "':'lU
I HEREBY CERTIFY that on this -.y of June, 2010, . Pi¡~~~ct
copy of the foregoing document was served on the following indiMÏf . dt¡¡Üì&lN
indicated below:
Jean Jewell
IDAHO PUBLIC UTILITIES COMMISSION
472 W. Washington St.
PO Box 83720
Boise iD 83720-5983
Neil Price
IDAHO PUBLIC UTILITIES COMMISSION
472 W. Washington St.
PO Box 83720
Boise ID 83720-5983
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