20110328Joint Motion to Compel or Motion In Limine.pdf

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P.O. Box 7218 Boise, ID 83707 - 515 N. 27th St. Boise, itrr8åf~t~,¿:;-
25 March 2011
Ms. Jean jewell
Commission. Secretary
Idaho Public Utilties Commission
POBox 83720
Boise ID83720-0074
Hand Delivered
RE: CASE NO. TFW-T-09..l
INTERVENORS' JOINT MOTION TO COMPEL OR1 IN THE
ALTERNATIVE1 MOTION IN LIMINE
Dear Ms. jewell:
I am enclosing an original and seven (7 copies of INTERVENORS' JOINT MOTION TO
COMPEL TRACFONE WIRELESS1 INC. TO FULLY ANSWER INTERVENORS' FIRST
JOINT PRODUCTION REQUESTS OR1 IN THE ALTERNATIVE1 MOTION IN LIMINE
TO EXCLUDE CERTAIN. EVIDENCE.
Also enclosed is a copy to be date-stamped and returned for our files.
Enclosures
Cynthia A. Melilo (ISB No. 5819)
GIVENS PURSLEY LLP
601 West Bannock Street
P.O. Box 2720
Boise, ID 83701
Telephone: [phone]
Facsimile: [phone]
E-Mail: cam(âgivenspursley.com
RECEIVED
20n MAR 25 PH 4: 51
Attorneys for Idaho Telecom Allance
Molly O'Leary (ISB No. 4996)
Richardson & O'Leary PLLC
515 North 27th Street
P.O. Box 7218
Boise, ID 83707
Telephone: [phone]
Facsimile: [phone]
E-Mail: molly(ârichardsonandoleary.com
Attorneys for CTC Telecom, Inc.
BEFORE THE IDAHO PUBLIC SERVICE COMMISSION
IN THE MATTER OF THE APPLICATION
OF APPLICANT TRACFONE
WIRELESS, INC. FOR DESIGNATION
AS AN ELIGIBLE
TELECOMMUNICATIONS CARRIER
CASE NO.: TFW-T-09-01
INTERVENORS' MOTION TO COMPEL
TRACFONE WIRELESS, INC. TO
FULLY ANSWER INTERVENORS'
FIRST JOINT PRODUCTION
REQUESTS OR, IN THE ALTERNATIVE,
MOTION IN LIMINE TO EXCLUDE
CERTAIN EVIDENCE FROM THE
RECORD
The Idaho Telecom Allance ("ITA"), by and through its attorney of record, Givens
Pursley LLP, and CTC Telecom, Inc., dba CTC Wireless, by and through its attorney of record,
Richardson & O'Leary, PLLC (collectively, "Intervenors"), in accordance with IDAPA
31.01.01.056, jointly file this MOTION TO COMPEL TracFone Wireless, Inc. to fully answer
Intervenors' FIRST JOINT PRODUCTION REQUESTS or, in the alternative, MOTION IN
JOINT MOTION TO COMPEL OR, ALTERNATIVELY,
MOTION IN LIMINE OF THE IDAHO TELECOM ALLIANCE AND CTC TELECOM, INC. - 1
TFW-T-09-01
LIMINE. Pursuant to Rule 256 of this Commission's Rules of Procedure ("IPUCRP"),
Intervenors hereby request expeditious relief from the Commission regarding the substance
hereof. IDAPA 31.01.01.256
PROCEDURAL BACKGROUND
Intervenors served their FIRST JOINT PRODUCTION REQUEST ("First Joint Request")
upon TracFone on February 18, 2011. That Production Request is attached hereto as Exhibit
A,. In particular, Intervenors' First Joint Request asked TracFone to provide various financial
data regarding its Safelink Lifeline offering that is the subject of its ETC Application and its
economic characterization of that service, including its so-called "free" handset.
TracFone timely filed an Objection to several of Intervenors' First Joint Request s on
March 4, 2011. That Objection is attached hereto as Exhibit B. In essence, TracFone objects
to numerous of Intervenors' First Joint Requests on the grounds that the information requested
is not relevant to this Commission's determination as to whether TracFone meets the Eligible
Telecommunications Carrier ("ETC") eligibilty criteria set forth in Appendix A to this
Commission's Order No, 29841, in Case No. WST-T-05-01 ("Idaho ETC Eligibility
Requirenients Ordet'.
ARGUMENT
The conduct of discovery in a proceeding before this Commission is governed by the
Idaho Rules of Civil Procedure. IDAPA 31.01.01.225.01. The scope of discovery permissible
under Rule 26 of the Idaho Rules of Civil Procedure ("IRCP") is broad: "It is not ground for
objection that the information sought wil be inadmissible at the trial if the information sought
appears reasonably calculated to lead to the discovery of admissible evidence." IRCP
JOINT MOTION TO COMPEL OR, ALTERNATIVELY,
MOTION IN LIMINE OF THE IDAHO TELECOM ALLIANCE AND CTC TELECOM, INC. - 2
TFW-T-09-01
26(b)(1). "Parties may obtain discovery regarding any matter which is relevant to the subject
matter involved in the pending action." Id.
It has recently come to Intervenors attention that TracFone has provided to the Federal
Communications Commission ("FCC") much of the same information requested of it by
Intervenors. This information was provided to the FCC by TracFone in the form of an ex parte
communication dated February 24, 2011. See Exhibit C, attached hereto. Much the same as
in the Notice of Proposed Rulemaking 1 pursuant to which TracFone provided said financial
information to the FCC, the financial data requested by Intervenors in this proceeding is
reasonably calculated to lead to the discovery of admissible evidence regarding the true
economic characterization of TracFone's handsets and initial airtime minutes. Confidential
information provided by the parties pursuant to this proceeding is protected by a Protective
Agreement signed by all parties, including Intervenors. Thus, pursuant to IRCP 26(b)(1), the
data requested by Intervenors is discoverable and TracFone should be compelled to respond
in fulL.
Intervenors move this Commission to order TracFone to fully answer Intervenors' First
Joint Requests no later than 5 p.m. MDT on Monday, March 28, 2011.
In the alternative, Intervenors move this Commission to strike any reference or claim by
TracFone regarding the "free" nature and/or economic benefits of its proposed service offering
from the record before it and to not consider any such claims by TracFone in its deliberations.
1 In the Matter of Lifeline and Link Up Reform and Modernization Federal-State Joint Board on Universal Service
Lifeline and Link Up, WC Docket No. 11-42, CC Docket No. 96-45, and WC Docket No. 03-109; FCC 11-32
(March 4, 2011).
JOINT MOTION TO COMPEL OR, ALTERNATIVELY,
MOTION IN LIMINE OF THE IDAHO TELECOM ALLIANCE AND CTC TELECOM, INC. - 3
TFW-T-09-01
RESPECTFULLY SUBMITTED this 25th day of March, 2011.
GIVENS PURSLEY LLP
m Allance
, Inc.,
JOINT MOTION TO COMPEL OR, ALTERNATIVELY,
MOTION IN LIMINE OF THE IDAHO TELECOM ALLIANCE AND CTC TELECOM, INC. - 4
TFW-T-09-01
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 25th day of March, 2011, I caused to be served a true
and correct copy of the foregoing by the method indicated below, and addressed to the
following:
Jean Jewell
Idaho Public Utilties Commission
472 West Washington Street
Boise, ID 83702
jean .jewell(âpuc.ldaho.gov
o U.S. Mail
o Overnight Mail
IZ Hand Delivery
o Fax
IZ Electronic Mail
Neil Price
Idaho Public Utilities Commission
472 West Washington Street
Boise, ID 83702
Neil.price(âpuc.ldaho.gov
o U.S. Mail
o Overnight Mail
o Hand Delivery
o Fax
IZ Electronic Mail
Mitchell F. Brecher
Debra McGuire Mercer
GREENBERG TRAURIG, LLP
2101 L Street, NW, Suite 1000
Washington, DC 20037
brecherm'âgtlaw.com
mercerdm~gtlaw.com
Dean J. Miler
McDEVITT & MILLER LLP
420 West Bannock Street
Boise, ID 83702
ioe~mcdevitt-miller.com
o U.S. Mail
o Overnight Mail
o Hand Delivery
o Fax
IZ Electronic Mail
o U.S. Mail
o Overnight Mail
o Hand Delivery
o Fax
IZ Electronic Mail
JOINT MOTION TO COMPEL OR, ALTERNATIVELY,
MOTION IN LIMINE OF THE IDAHO TELECOM ALLIANCE AND CTC TELECOM, INC. - 5
TFW-T-09-01
EXHIBIT A
INTERVENORS' FIRST JOINT PRODUCTION
REQUEST OF TRACFONE
JOINT MOTION TO COMPEL OR, ALTERNATIVELY,
MOTION IN LIMINE OF THE IDAHO TELECOM ALLIANCE AND CTC TELECOM, INC.
TFW-T-09-01
Cynthia A. Melillo (lSB No. 5819)
GIVENS PURSLEY LLP601 W. Banno Strt
P.O. Box 2720
Boise, 10 83701
Telephe: (20) 381200
Facsmile: (208) 388-130
E-Mail: carrivenSDursley.com
Attrnys for Idaho Telem Alftanc
Molly O'Leary (ISB No. 4996)
Richardson & O'Leary PLLC
515 Nort 27th Str
P.O. Box 7218
Boise. 10 83707
Telephne: (208) 938790
FaesmHe: (208)9387904
E-Mail: mollytanchardnandolearv.com
Attrnys for eTC Telecm, Inc.
BEFORE THE IDAH PUBUC SERVICE COMMISSION
IN THE MATTR OF THE APPLICATION
OF APPLICANTTRACFONE
WIRELE~ INC. FOR DESIGNATION
AS AN ELIGIBLE
TELECOMMUNICATIONS CARRIER
CASE NO.: TFW-T-oQ-1
FIRST JOINT PRODUCTION REQUEST
OF THE IDAHO TELECOM ALLIANCE
AND CTC TELECOM, INC., DBA CTC
WIRELESS, TO TRCFONE
WIRELESS, INC.
The Idaho Telèm Allance, by and through Its attorney of rerd, Givens Pursley LLP,
and CTC Telecom, Inc., dba CTC Wireles (formr1y dba Snake River PCS), by and .through
its attorney of rerd. Richardson & O'Leary, PLLC. jointly reuest that TracFone Wire,
Inc. (IITraFonell) provide the following document and Infonnatin as son a8 possibl. but no
later thn twntne (21) days frm the date of serv heref. In accrdanc wi IDAPA
31.01.01.225.03.
FIRST JOINT PRODUCTIO REQUeST OF THE IDA TELeCOM ALLIANCE AND
CTC TELEC, INC., DBA CTC WIRELESS, TO TRACFONE WIRELESS, INC. -1
TFW-T-01
This Production Request is to be considered continuing, and TracFone is requested to
provide, by way of supplementary responses, additional documents that it or any person acting
on its behalf may later obtain that wil augment the documents produced.
Please provide answers to each question, supporting workpapers that provide detail or
are the source of information used in calculations and the name, job title and telephone
number of the person preparing the documents. Please identify the name, job title, location
and telephone number of the record holder.
Please provide all Excel and electronic files on CD with formulas activated.
REQUEST NO.1. Please provide a list of all partial exchanges and/or study areas in
Idaho where TracFone intends to offer Lifeline service.
REQUEST NO.2. Please provide financial statements and related footnotes for the
years ending 2010, 2009 and 2008 (audited if available).
REQUEST NO.3. Please provide total TracFone and Idaho~specific revenues by type
or source for the years 2010,2009 and 2008.
REQUEST NO.4. Please provide the total amounts of Federal low income support
received for the years 2010, 2009 and 2008.
REQUEST NO.5. Please provide the total amounts of state low income support
received for the years 2010,2009 and 2008.
REQUEST NO.6. Please provide total TracFone and Idaho-specific operating
expenses by type of expenditure for the years 2010, 2009 and 2008.
REQUEST NO.7. Please provide any business plans, budgets or forecasts completed
in the past three years. Please provide any margin analysis or related studies showing
profitabilty by product or service.
FIRST JOINT PRODUCTION REQUEST OF THE IDAHO TELECOM ALLIANCE AND
CTC TELECOM, INC.. DBA CTC WIRELESS, TO TRACFONE WIRELESS, INC. - 2
TFW-T-09-01
REQUEST NO.8. Please descnbe TracFone's dividend policy.
REQUEST NO.9. Please provide a list of the amount of dividends paid to the top ten
(10) shareholders of TracFone the previous three (3) calendar years.
REQUEST NO. 10. Please provide the average cost of the handsets TracFone
provides for free to Lifeline customers.
REQUEST NO. 11. Please provide the total number TracFone employees.
REQUEST NO. 12. Please provide the total number of TracFone employees located in
Idaho.
REQUEST NO. 13. Please provide the forecasted number of TracFone employees to
be located in Idaho if ETC status is obtained.
REQUEST NO. 14. Please provide the copies of the resellets agrements or contracts
with T -Mobile and Venzon Wireless.
REQUEST NO. 15. Please provide the total amounts paid to the above-reference
carrers for servces provided in 2010, 2009 and 2008.
REQUEST NO. 16. Does TracFone provide or receive services from any affliated
interests, including its parent company or other subsidianes? If so, disclose the nature of those
services and their related costs. Please provide a copy of any management services
agreements.
REQUEST NO. 17. How many customers did TracFone serve in Idaho at the end of
2010? What was the average revenue per customer per month?
REQUEST NO. 18. At the end of 2010, how many total customers did TracFone serve?
What was the average revenue per customer per month?
FIRST JOINT PRODUCTION REQUEST OF THE IDAHO TELECOM ALLIANCE AND
CTC TELECOM, INC., DBA CTC WIRELESS, TO TRACFONE WIRELESS, INC. - 3
TFW-T-09-61
REQUEST NO. 19. At the end of 2010, how many SafeLink customers did TracFone
serve? What was the amount of average low income support per customer, per month? What
was the average revenue per customer per month, excluding low income support?
REQUEST NO. 20. What percentage of SafeLink customers purchase additional
minutes and services and in what volumes?
REQUEST NO. 21. If TracFone were granted ETC status in Idaho, how many eligible
low income customers does TracFone forecast it wil obtain in the first three (3) years of
service?
REQUEST NO. 22. What is TracFone's customer chum rate in total and for SafeLink
customers?
REQUEST NO. 23. What states have denied TracFone's request for ETC status as it
relates to low income support?
REQUEST NO. 24.. What measures does TracFone use to monitor quality of service?
Provide copies of any internal management reports showing this information for the past three
(3) years.
REQUEST NO. 25. Where is TracFone's customer service center located? How many
people are employed at this location( s)?
REQUEST NO. 26. How many SafeLink applications have been denied following
verification of eligibilty over the past three (3) years?
REQUEST NO. 27. How many applications are verified against state records for
eligibilty?
REQUEST NO. 28. Please provide copies of all enrollment forms currently in use by
TracFone for each state in which TracFone provides Lifeline subsidized cell phone service.
FIRST JOINT PRODUCTION REQUEST OF THE IDAHO TELECOM ALLIANCE AND
CTC TELECOM, INC., DBA CTC WIRELESS, TO TRACFONE WIRELESS, INC. - 4
TFW-T -09-01
REQUEST NO. 29. Please state, with specificity, what the currnt Lifeline enrollment
eligibilty criteria is for Idaho.
REQUEST NO. 30. Please state, with specificity, how TracFone intends to verify
eligibilty in Idaho.
REQUEST NO. 31. Please identify how many TracFone customers have been
prosecuted for providing false information on a Lifeline enrollment form since TracFone began
offering Lifeline subsidized cell phone service. For each such customer, please identify:
a. in what state the customer resided at the time of their enrollment
b. what the nature of their perjury was
c. by whom they were prosecuted, and
d. what penalt was imposed.
REQUEST NO. 32. Please identify the specific type of prof TracFone L.ifeline
customers must provide of their income eligibilty. If such proof varies from state-to-state,
please identify the type of proof required for each state.
REQUEST NO. 33. Please explain TracFone's internal procedures for verifying the data
provided on its customers' enrollment forms and please provide all related prcedural
documents.
REQUEST NO. 34. To the extent TracFone uses third-party vendors to perform all or
any portion of its enrollment form verification, please identify any such third-party vendors and
please provide documentation detailng the number of applications that have been rejected as
a result of this verification process for each calendar year that TracFone has been offering
Lifeline subsidized cell phone service.
FIRST JOINT PRODUCTION REQUEST OF THE IDAHO TELECOM ALLIANCE AND
CTC TELECOM, INC., DBA CTC WIRELESS, TO TRACFONE WIRELESS. INC. - 5
TFW-T-09-o1
REQUEST NO. 35. Please explain TracFone's internal procedures for verifying that any
third-party vendors it uses for enrollment verification are accurately verifying enrollment data
and please provide all related procedural documents.
REQUEST NO. 36. Please descrbe what type of proof a TracFone applicant must
provide regarding the address at which they claim to reside.
REQUEST NO. 37. Please describe the procedures TracFone uses to verify that
addresses provided by applicants on TracFone's enrollment forms are, in fact, residential
addresses.
REQUEST NO. 38. If the same address is used by more than one TracFone applicant
for Lifeline subsidized "free" cell phone service, and the new applicant provides proof that the
applicant is residing at the address in question, does TracFone terminate the service of the
"current subscribet' using such address? If not, why not?
REQUEST NO. 39. Under what circumstances might TracFone provide Lifeline
subsidized "free" cell phone service to more than one person at the same address?
REQUEST NO. 40. Please explain what procedures TracFone has in place to ensure
that its Lifeline customers update their eligibilty status on a regular basis.
REQUEST NO. 41. Please explain what procedures TracFone has in place to verify its
Lifeline customers' updated eligibilty status information.
REQUEST NO. 42. Please identif all jurisdictions in which TracFone customers are
not required to use their Lifeline subsidized "free" airtime minutes for calls to customer service
and/or technical support.
FIRST JOINT PRODUCTION REQUEST OF THE IDAHO TELECOM ALLIANCE AND
CTC TELECOM, INC., DBA CTC WIRELESS, TO TRACFONE WIRELESS, INC. - 6
TFW-T-09-01
REQUEST NO. 43. Please explain what role underlying carriers have in determining
whether TracFone customers in Idaho would be required to use their Lifeline subsidized "free"
airtime for calls to customer service and/or technical support.
REQUEST NO. 44. Please identify and explain what other factors, if any, wil determine
whether TracFone customers in Idaho would be required to use their Lifeline subsidized "free"
airtime for calls to customer service and/or technical support.
REQUEST NO. 45. Please identify all usage that is considered usage under
TracFone's "non-usage policy."
REQUEST NO. 46. Are there any states other than South Carolina and Washington
that do not pay $0.20 per minute for additional airtime minutes? If so, please provide
documentation of what TracFone customers in such states pay.
REQUEST NO. 47. Please explain how TracFone wil determine the "effectiveness" of
Its $0.10 per additional airtime minutes offerings in South Carolina and Washington (and any
other state where such a program is offered) prior to deciding whether to make that offering to
its Lifeline customers in all states.
REQUEST NO. 48. Customer Communications:
a. Please identify all methods of communication used by TracFone to
communicate with its Lifeline customers regarding rates and fees, and
please identify whether all forms of communication are used for each
customer communication.
b. To the extent all forms of communication are not use for each customer
communication from TracFone, please explain what forms are typically
used and the order of priority for each such communication format.
FIRST JOINT PRODUCTION REQUEST OF THE IDAHO TELECOM ALLIANCE AND
CTC TELECOM. INC., DBA CTC WIRELESS. TO TRACFONE WIRELESS. INC. - 7
TFW-T -09-01
c. Please explain what determines which formes) of communication are used
in each instance.
REQUEST NO. 49. Please explain, in detail, any revisions to your responses to the
First Production Request of Commission Staff that are necessitated by TracFone's decision to
offer an expanded Lifeline service offering in Idaho, as outlined in its August 13, 2010 Notice of
Expanded Lifeline Offering. Please provide your response to this Production Request on a
question-by-question basis for each Production Request set forth in the Commission Staff's
First Production Requests.
REQUEST NO. 50. Please provide copies of all communications (whether oral, written
or otherwise) with the Idaho Public Utilties Commission that have not otheiwise been
published on the Commission's website. A request for the description of oral communications
shall be deemed to include a request for the following information with respect to each of said oral
communications:
1. The date and place of such communication.
2. Whether said communication was in person or by telephone.
3. A description of each persn who participated in or heard of said communication.
4. The substance of what was said by each person who participated in said
communication.
5. A chronological description of all documents or recordings, summarizing, confirming
or in any manner referring to said communication.
FIRST JOINT PRODUCTION REQUEST OF THE IDAHO TELECOM ALLIANCE AND
CTC TELECOM, INC., DBA CTC WIRELESS, TO TRACFONE WIRELESS, INC. - 8
TFW-T ..-01
DATED this 1st day of February 2011.
GIVENS PURSLEY LLP
cl~fL,Cythi A Melillo
Atorey fo Idaho Telecm Alliançe
RICHADSON & O'lEAY, PllC
. Inc.,
FIRST JOI PRUC REQUEST OF THE IDA TELECOM ALLIANC AND
CTC TEL.ECO. INC., DE CTC WIRESS, TO TRCFONE WIRELESS, INC. -9TF-T..1
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that on the 18th day of February 2011, I cause to be served a
true and corrt copy of the foregoing by the method indicated below, and addressed to the
following:
Jean Jewll
Idaho Public utilties Commission
472 Wes Washingon Stret
Boise. ID 83702
jean.jewelltmpuc.ldaho.QOv
D U.S. Mail
D Ovmight Mail
D Hand Delivery
DFax
IZ Elecnic Mail
o U.S. Mail
D Overnight Mail
D Hand Delivery
o Fax
IZ Electronic Mail
Mitchell F. Breher
Debra McGuire Mercr
GREENBERG TRAURIG, LLP
2101 L Street, NW, Suite 1000
Washingn, DC 20037
breChenntCtlaw.com
mercerdmOglaw.com
Dean J. Miler
McDEVITT & MILLER LLP
420 Wes Bannock Stret
Boise, 1083702
jQ(gmcdevitt-miller.com
D U.S. Mail
D Overnight Mail
D Hand Delivery
DFax
IZ Elecnic Mail
Jrdl tl l!jJCy ia A. Melllk
FIRST JOINT PRODUCTIO REQUEST OF THE IDAO TELECOM ALLIANCE AND
CTC TELECOM, INC., DBA CTC WIRELESS, TO TRACFONE WIRELESS.. INC. -10
TFW-T-01
EXHIBIT B
TRACFONE'S OBJECTION TO INTERVENORS'
FIRST JOINT PRODUCTION REQUESTS
JOINT MOTION TO COMPEL OR, ALTERNATIVELY,
MOTION IN LIMINE OF THE IDAHO TELECOM ALLIANCE AND CTC TELECOM, INC.
TFW-T-09-01
McDevitt & Miler LLP
Lawyers
FILE COpy
(20) 347500
(20) 3391% (Fax)
420W. Bannoçk Street
P.O. Box 2564.83701
Boisef Idaho 83702
March 4, 2011
'WsHsndDetU
Jea Jew SeetaIdao Publi Utitis Commsion
472 W. Wason St.
Boie, Idao 83720
Re: Itt the Mattr of the Applcation ofTracFone Wiress
TPW"T-09-0i
De Ms. Jewel
Cb. F. MeDevitt
J) J . (Joe) Mi
~--..
:E~
iç
:i
c...-ç'
Enclosed for fi pleae fid tl (3) cppiÇ$ ofTracFoíl WiitJess) Iic.'s Objectons to FitJoint
Prod'lctionltuest of Idao Telecom Alce and CTC Telecom, Inc d/ba/ CTC WitÇ$s.
Kidly retu a fie stape copy to me.
Ver Truy YO\l)
~iL
DJM/lu
End
FILE COpy
Dean J. Miler (ISB No. 1968)
McDEVITT & MILLER LLP
420West Banock Street
P.O. BOX 2564-83701
Boise, Idaho 83702
Tel:[phone]
Fax: [phone]
ioe($mcdevitt-niUer.com
.-" r-, l-\,...-"
zun Ml\R -4 PM 3: , 4
Mitchell F. Brecher
Debra McGui Mercer
GREENBERG TRAURG, LLP
2101 L Street, NW, Suite 1000
Wasgton, D..e. 20037
Tel: [phone]
Fax: [phone]
brecherm~gtaw.com
mereerdm~gtlaw.com
Attorneys jòr TracFone Wireless, Inc.
BEFORE, THE IDAHO PUBLIC UTITIES COMMSION
IN TH MATTER OF THE APPLICATION
OF TRCFONE WILESS, INC. FOR
DESIGNATION AS AN ELIGIBLE
TELECOMMUNCATIONS CARR.
) CASE NO. TFW-T-Ø9-01
)
) TRACFONE WILESS, INC.'S
) OBJONS TO FIT JOIN
) PRODUCTON REQUEST OF
) THE,IDAHOTEECOM
) ALLIACE AN CTC
) TELECOM, INC. DBA CTC
) WILESS
Puuat to IDAPA 3'1.01.01.225.03, TracFoIle Wireless. me. (~TracF(j:ie"):fes the
followig objections to th Firt Joint Pruction Requet of the Idao Telecm Alliance an
eTC Telecom, Inc. dba eTC Wirless.
llQUESTNO. 1. Pleas provide fiancial statements aiid rebltec foo"'ot~ for the yean
eiicliiiliOiO, %009anCi2Q (auclitec if avaiable).
Objeetin:, TracFone objects to ths reuest to the e"tent tht it seks inforionth is
not relevantto the detennaon of whether Traone mee the federal reujinents . of 47
U.S.C. § 214(e)(1) and (2) for desigpon asai ETC or the ldaorequiements for degnon
as an ETC ÇQnWued in the Appendì.to In the Mater of the Aimlicaon of WWC Holding Co..
Inc. DBA Cellular-One~ Seekig Designation as ,an Eligible Telecommuncatons Caer Tht
May Recve Fedra Urrvers SeryceSyrt, Order No. 29841, Cas No. WST-T-OS-l
(Idaho Pub. Utiities COni'n: Augst 4, 2005) ("ETC Checklist"). Without wavig its
objectìon, sta$th it is 98.2pereent ownd by Amerca Movil, the four largest inobile
telecoinuncatons copay in th world. Aìerica Movil ìs publìcly trandìts :tial
stments a:avalable.on its Website at ww.americaovi1.com.
llQtJEST~Q.3. Pleae provide total TraeFone and Idaho-s,peeife revenues by ty or
soureeforthe years1010, 1009 and 2008.
Obj!Ø: Tl'Fone, objec to, ths requet to the extnt that itseelc ìnorion that is not
relevant to the determtion Qf whether TracFone ineets the federa reuiements of 47 U.S.C.,§
214(e)(l) and (4) fordesignûon as an ETC or the Idaho requjments in the ETC Cheçisifor
designtion as ai ETC.
REQUEST NO. 4. Please provide the total amounts of Fece..1 low ineoine support
teeiVec for the Yean 2010, 100 and 1008.
Obiedon: TraFoneobject to this reuest to the extent tht itseelc ìnorration tht is not
relevant to the detenation of Wheter TraFone meets the federa requiements of 47 U.S.C. §
214(e)(1) and (2) for designtion as an ETC or the Idao reuìeinents in the ETC Checklst for
2
designation as an ETC. TraFone fuer objects to ths reuest to the extent th it seks
information tht is publìcly available.
REQUEST NO.6. Please provide total TracFone and Idaho-speifcoperatig expenses by
tye of expenditure for the years2010, 2009 and 2008.
Objection: TtaFoneobjects to ths reuest to the extent tht it seeks inormaton tlt is. nQt
relevant to the determtion of whether TraFone meets the federalrequiements of 47 U.S.C. §
214(e)(1) and (2) for designation as an ETC or the Idao reuiements in,th ETC Checklist for
designtion as an ETC.. TracFone does not disagregate its operatig expenses for Idao or for
any other stte and itisnotrequid to, do so.
REQUEST NO. 7. Plea,se provide any bnsùiess plans,.budgets or foreastscompleted ùithe
past three years. Please provide any margi analsis or relatetstudiesshowùig
profitabilty by product or service.
Objeetion: TraFone objects to ths reuest to the extent that it seks infonnontht is not
relevant to the determion of wheter TracFone mee the federal reuirements of 47 U.S.C. §
214(e)(l )aid, (2) .for desigitionas an ETC or the Idao reuients. úi the ETC Chec1dst for
designon as an ETC. Without waving its objectio~ TracFone~tas tht it wilproV'Ì(je a
resPQns to Request No. 21~ which reuests th number of eligible low income cusomers
TracFone forecas it wi obta úi the :f th yea of servce.
REQUEST NO. 10. Please provide the average cost of the handset TracFone provides for
f~ to Lifelie customers.
Objeetion: TracFone objects to ths requet to the extent tht it seks inormaton that is not
relevant tothedetetttion of whether TraFone meets the fedetarequerentsof 47 U.S.C. §
214(e)(1)and (2) for designation as an ETC or the Idaho req\lements úi the ETC Checklst for
d.signtiQn as an ETC. Moreover, the hadsts ar not fuded or .subsidi by the federa
Univers Servce Fund; their cost are borne entiely by TracFone.
3
REQUEST NO. 14. Pleas provide the copies of the reeller's agrments or cøntrct with
T -Mobil ind VelÙon Wirles
2ltJlsti: TnaFone objets to ths reuest to the extent th it seks iiotntion tht is not
releva.t to the detemrnation of Whether T:rFone meets the federal requiinents of47 u.s.e.§
214(e)(I) and (2) for desigpation 8$ an ETC or the Idaoreuireents in the ETC Checklstfor
desigiona.an ETC. Furnnore, th agrments conta confdentiality provisions which
prelude prouction of them without the other companes' consent. In addition. those
agments ar the result of ar's lengt negotiations between T:rFone and those caers and..
ar not subjeçt to reguaton' at either the stte 01' federa leveL.
REQUEST NO. is. Ple .provide the total amounts paid to th.above-refereneøc~rreft
førservce providødin 2010,200 and 2008.
2Rleetln: TtaFoneobjects to ths reuest to the extent that it seks inonnaton that is not
relevantto the detei:tion of wheter TracFone meetS the federa requimentS óf47 U.S.C.§
214(e)(1) and (4) fordesigpaton a.an ETC or the Idao requiements in the ETC Cheçldst for
designation, Man ETC. TraFone fuer state th it is unble to deterine which pórton of
the amounts pad to carers is for Ida9inintate servce.
REQUEST NO. 16. l) TraeFone provie or receive servces from aiyaffted
int....ts,inclu.dmgitspar.nt eønip..yor other subsidiaries,? if so, diclose théiiatu..e of
those.ervces and their related costs. Pleae provide a copy of 8,ny mana.emelltservees
agrments.
Objee: TraFone objectS to ths reuest t( the extnt that its~ks ii9nnaton thåt is not
relevantto the determnation of whether TracFonemeets the federa reqiirenents of47 U.S.C.§
214(e)(1) an (2) fordesigiti()n as an ETC or the Idao requirments in the ETC Cheøklstfor
4
designation as an ETC. Without waiving its objection. TracFone will identi afliated entitìes
th provide services to TraFone.
REQUESTN(). 17. How many customers did TracFo,ne serve il Idaho atthe endof2010?
What was the average revenue per custo..er per month?
ObieeOD: TracFone object to ths request to the extent tht it, seksìnormaton th is not
relevant to the determtion of wheter TracFone meets the federrequienients of 47 U.s.C. §
214(e)(l) and (2) for designtion as an ETC or the Idaho requimets in the ETC Checklist fol'
designatou as an ETC., Without waving its objection. TtaøFoi:e will provide the llUtof
ciitoniers it served in Idaho at the end of 201 O.
REQUEST NO. 1$. At the end of 2010, how ..any totadcustomers did TracFoneserve?
Whatwas the average revenue per customer per month?
Objection: TracFone object to ths reuest to the extent that it seks ìnorttioti that is not
relevant to the deterition of whether TracFone meets the federal reqlJreinentsof 47 U.s.C. §
214(e)(1)and (2) for desigitionas an ETC or the Idao requieine11 itithe. ETC Checklist for
designaton as an ETC. TracFone fuer objects that the requests does not sek jrioriouth
is related to Idao. Without waivig its objection, TracFone will provide nunbe of cusomer at
theendof2010.
REQUEST NQ. 19. At the end of 2010, how many SafeLin customendid TracF'one
serve? What was the amount of average low income support per customer" per moiith?
What was theaveragereve..ueper customer per month, excluding low income support?
Objecton: TraFone objects to ths reuest to the extent that it seks inorntionth is not
relevant to the deteriin~on of wheter TracFone meets the feder requireinen of 47 U.S.C.. §
214(e)(I)an (2).for designation as an ETC or the Idaho reuiments.in the ETC Checklst for
designon as an ETC. TraFone fuer objects tht the reuests does not sek intorntiól1th
5
is relat to Idao. Without waving its objection, TraFone Will provide numbe of cusomer at
thendof201O~the avere low Incomesupport per customer pe inonth.
REQt1ST NO. 22. What is TraeFoDe's eustomer ehurn rate in total and for SafeLink
eustomen?
Obi.": TraFotleobjects to ths reuest to the extet tht it seeks inormtion t1t is not
relevant to the detennnation ofwheter TracFone ineets the federa requients ot47 U.S.c. §
214(e)(l) an (2) for designtion as an ETC or the Idao reuients in the ETC ChecJdstfar
desigitionas a.ETC. T~Fone fuer objects to ths reues beaus the tm "chumtå" is
vage. It. ñier objects to ths reues on the grounds that the ter "chum rate" is not defied
or explaiedand is . inerently vage. Without waiving its objection, and afer reivig
clarcation as to the intended meag of the term "chur rae," TracFone wiprovi4ea
t'spnsto tleextJlt 'te reuest. relates , to TracF.one's Lifeline servce.
REQUEST NO. 24.. Wht measure don TraeFone use to nionitor quil1ity of$eroee?
ProVide eopies of any interi ma"agement report showig thiS informatin for the past
t1re(3) Y~l".
Objed: TraFone objects to ths reuest to th exten t1t it seeks inormon tlt is not
releVlÎt to 'te deterttion ofwhetht TraFotle meets the feder reuiments of47 U.S.C.§
214(e)(1) and (2) fordesigntioJl as an ETC or the Idao requiements in the ETC Clieckli$t for
designtionas an ETC. Without waivi its objecon, TraeFone will prvide a list of crteri
TraFone uss to monitor quaty of sece.
REQI1ST NO. 33. Plese expla TraeFoDe's ùitemal proceure for verig the data
prOVded pn its eustomel"' eDr9llent forms and pleas provide all reiated proedural
docUDents.
Oljedon: TraFone objects to ths request to the extt tht it seeks inormon th is not
relevant to the deterttion of wheter TraFone mee the federa reuiment of 47 U.S.C.§
6
214(e)(l)and (2) for designtIonâSa. pTCor the Idao requirments intheETC Checklist for
designaton as an ETC. Without waivig its objection, TracFoiiewi pt'o\'deai explaionof
its procedures for verifyg the datå,provided on its customers' enrollentforms.
REQUEST NO. 34. To the extent TraeFone uses third-part vendors to perfonn all or any
porton of its enrollment form verieation, please identify any sueh third-part vendors
and please provide doeumentation detailg the number of applieations that have been
rejeete asa result of this verieation proeess for eaeh ealendar year that TraeFone,has
been offerig Lifelie subsidized cell phone servce.
ObÎeetion: TracFotie objects to this request to the extent that it seks iníörmtionthat is nøt
relevant to the deteriatIon of wh.tJer TracFone mèêts tJe federa tê4iiemetits of 47 U.S.C.. §
214(e)(1) and (2) for designtion as an ETC or the Idao requiements in the ETC Checklist for
designon as an ETC., Witho1lt waiving its objection,l"racFone Will identify anyth-par
vendorsìt useS toperfori enrollient form verification.
REQUEST NO. as. Please explliii Ti-cFone'sinternal proeeuresfor veiig that a.ny
third-part ven(lors it uses for enrollment vericatioJl are aecurately veiigeJl"olleJlt
data and please provide all relatedproedura doeuments.
Objeetion: TraFone objects to ths request to the extent tht it seeks inormon tht is not
relevant to the determtion of whether TracFone meets the federa requiements of 47 U.S.C. §
214(e)(1) a.d.(2) for designation as a. ETC Of the Idao reiimentsin the ETCChecklistfof
designtion as an ETC. Without waivig its objection, TraFoneWill ideiitify th-pi
vendors it uses to veri enrollient data
REQUEST NO. 47. Please explain how TracFonewil determine the "effeenvene$s"öfits
SO.tOper additional airte minutes offerigs in South earolia and Washigton (an(l any
other state where such a p.røgal1 is offered) pnor todeeidingwhether töinakethat
Qffenngto its Lifelie cllstoiners in an state$.
Objecon: Tl'cFone objects to ths request to the extent tht it seks inormtionthat ìsnot
relevanttø the deteninationofwheter TracFone meets the fedetalrequitements of47 U.s.C. §
214(e)(l) and (2) for designtion as an ETC or the Idao reiiemenisinthe ETC Check1istfor
7
designtion $Sar ETC.Withoit 'WViits objection, TraFone state thatinIcio it wil offer
SafeLii Wirlessll cU$1tetaddìtion. auite miuts at â røte of SO. 1 0 .pe..mitite.
DA 'fD ths L. --day of Mar 2011.
M(!DEVITT & MlLE LL
By:
De. IHe (ISB No. 19 8)
McDEVlIT & MILLER LLP
420 Wes Banock Street
P.O. BOX 256483701
Boise, Idao 83702
Tel: [phone]
Fax: [phone]
joefimcdevitt-millel'.com
Mitchell F. Brecher
Debra MèGtiMerer
OREENlER,G TRU1(., LLP
2101 L Strt, NW, Suite 1000
Wasn, D.C. 20037
Tel: [phone]
Fax: [phone]
brehennfigtaw.com
mererligtaw.com
Attorneys for TracFone Wireless, Inc.
8
CERTIICATE OF SERVICE
Ihereby cefy that on the £day of Mah, 2011, I causto besetved Vi the
methodes) indicate below, tr and corr copies of the foregoing document, upon:
Jea Jewell,. Secreta
Idao Public. Utilities Commssion
472 West Wasgton Stret
P.O. Box 83720
Bois, ID83720.0074
ijewell~puc.stae~id.us
Neil Prce, Esq.
Idao Public Utilties Commssion
472 West Washin Street
P.O. Box 83720
Boise, il 83720.0074
Neil.Pnce~puc.idao.gov
Molly..O'Lear,Esq.
RÎchall1 & O'Lear, PLLC
P.O. Box 7218
Boise, ID83 707
mollYtchadsonadolear.com
Cyntha A. Melillo, Es.
Givens Pusley LLP
601 N. Banock stret
P~O. Box 2720
Bois, ID83701
ca~givenspurley.com
Hand Delivered
U.S. Mai
Fax
Fed. Express
Emal
Han Delivered
U.S. Mail
Fax
Fecl.Ex.press
Email
Hand Delivered
U.S. Mail
Fax
Fed. Express
Eml
Hand Delivered
U.S. Mail
Fax
Fed. Express
Emai
~~~~~
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BY:~ :tLi
McDeVITT .. MILLERLLP
9
EXHIBIT C
TRACFONE'S EX PARTE COMMUNICATION TO
FEDERAL COMMUNICATIONS COMMISSION
JOINT MOTION TO COMPEL OR, ALTERNATIVELY,
MOTION IN LIMINE OF THE IDAHO TELECOM ALLIANCE AND CTC TELECOM, INC.
TFW-T-09-01
.'GreenbersTrauri8
. j,
. REACTED
AVAI4LE FOR PUBLIC INSPECTION
4t
f Febr 24, 2011
VIILNIC ll
Ms. Maen H. Do
F uneaon Commiuion
445 12th Strt,SW
Was DC 26554
Re; ÇC Do ."'5.. Feder Jom Boar on UJI~we 83109 .. Llfaa Liu Up
NonCE OF EX PAR PRINTATION
Dc;,Ms Doh:
On Feb 18, 2611, u. col for Traone Wites Inc. me wi
Zaha Katz. J. Adv to Cha Gei, with Shaon amou, Chif, Wirelìu
Competi Bur, Carl Mat, Demy Chef, Wirlìu Copetion Burau an with Tre
Ha, Chf, Telecmmuncaon Acc Policy Division Wirli Competion Buru.
Du th mee we dised th forg notice of prpose m1 on Ufeliand Lin Up mars, înludiì eligibility cefi verficaon an coèl outach.
Also durgtb me, TraFone wa reue to prde cer data regag TraFone's
a~e "br even" period for Lifeline cuoD'ers an its Lifeline cusme' a'Ve us pe
month. Th pu for th supplemta ex pa priation let is to prvide the dareue.
REUEST FOR CONFIENT TRATMNT
Put to Secti 0.459 of th Commission's rues, TraFone, by itswiipecounl, ietht ee inrmon co in this leter be accoded confal
trt and th suh inormon not be rouly available for public insçton. In
pacular, TraFon re th its aver brea even peod for Lifelin cume ,an itLifeli cusme' &Vet monthy us reve coen tmmet. Th re da
includes highy confdenal copetively sesitive inortion whch would ca TraFan
baiftb da beeavalale to ex or poten wintors. in adtion, th reue
da is not avlable to th public. Pulic disclosur of da rearng th len of tie it ta
TraFoneto recup th costs of enlling a cuomer in Lifeline (i& th bre even peri) aa
cu usae da an ac by TraFon's competors to the re inrmtion wouldbe cotively hafu to TraFone beau it would provide competors with imt
GRE TRURl. LLP . ATTOkNS AT LAW . WWW.GTLW.COM
2101 L Stn. ~.w. . SUite 100 . Washingon. D.C. 2037 . Tel i02.3l.lOO . Fax [phone]
llEDACTED
AVAIABLE FOR PUBLIC INSPECTION
..Ms.DoF~24~20i1'.20(2
in~ th. am, öf .fm. T.,òi ~w eaUaø~aLie6ç~an rø... ~T_Fon.s LJfelinoffei.is .ni.. ,thllofitsC~. .~)'.puttoSeOJíO.4S9 of th C~~$ .'~TntFl)~lyreue tlt thinotonprovide in th let no be l'ly av1e.for
pilJlicinon.
SUPPLEMENTAL INORMTION
TiaFmi . Wå.âsedabo~t tnaverei"breven..peoofot. etllinUfélû
çusmer. T_Fone es~. th breevei peodfol' it SaeLin Wiles. Lifel~.....tØ .'li,.IHØAC1EDI. ..l'.,is_on.wDl1~D1us ~n ~~....jn
TraFon~s Lifelin pt,in .,or for TmeFon to bcab to rever its co..of.~
an se ... ,øime._lud~' øcui~, delive"co, an .~of
ma.aø ou TiaFon al wa. as ab it Liel cu~ ~'...
.pemoii Of TraFOD'S th Lìf pla its 250 min pe moplais th. mo
popuar. Cu enlled in, tbatplan reve 250miui offr wile aipeJlOn ave, th cu us (RDACT) miut pemotb for voica-1Jin ai.~e IllAClDJ SMS te. me pe mo At th p. ra of lmi of
ai." ~.~m. use by cueill in tb25 ttplåD is(RACTDJmiui.
T~f'øn išprl'di tb Cgnf1i. Vèøn 'Of ~' loUtØtb, it1J0f .tJ.
Cornssions1wbo.at.tI F~ l&mee. A re veioiof .tb le is
~ tD~el~ni~lllY ,in , ~~.witl~onsO.4$9(1)(1)and.i.l~~ortbCornmiS$oils tues!It tberar q~ons, pleaeomm\UÇadirtly witl undetgi
coiml forT*Fone.
ce: Mr. Za Ka
Ms Sh 0iMs. Cal MaMr~ Tret Ha
GR ~ UP . ATTOI AT LAW . WW.GTlW.COM