20110613Intervenors' Post-hearing Reply Brief.pdf

/I
Cynthia A. Melilo, ISB # 5819
GIVENS PURSLEY LLP
601 W. Bannock Street
P.O. Box 2720
Boise, 10 83701
Telephone: [phone]
-JFacsimile: [phone]
c: Email: cam(ägivenspursley.com
Z Attorneys for Idaho Telecom Allance
CD
N Molly O'Leary (ISB No. 4996)L. Richardson & O'Leary PLLC
o 515 North 2th Street
P.O. Box 7218
Boise, 10 83707
Telephone: [phone]
Facsimile: [phone]
E-Mail: molly(ärichardsonandoleary.com
Attorneys for CTC Telecom, Inc.
RECEIVED
2m l JUN l 3 PH 4: 09
BEFORE THE
IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION )
OF TRACFONE WIRELESS, INC., FOR )
DESIGNATION AS AN ELIGIBLE TELE- )
COMMUNICATIONS CARRIER )
)
)
)
)
CASE NO. TFW-T-09-o1
INTERVENORS' POST-HEARING
REPLY BRIEF ON THE APPLICABILITY
OF THE IDAHO EMERGENCY
COMMUNICATIONS ACT AND THE
IDAHO TELECOMMUNICATIONS
SERVICE ASSISTANCE PROGRAM TO
TRACFONE WIRELESS, INC.
The Idaho Telecm 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 wih
Order No. 32231 of the Idaho Public Utilties Commission ("Commission"), hereby jointl
INTERVENORS' POST-HEAING REPLY BRIEF ON APPLICAILITY OF IECA AND ITSAP TO TRACFONE
TFW-T-01
1
,.
file this post-hearing reply brief in the above-captioned matter. See Order No. 32231
(April 21, 2011). In the interests of brevit, this reply brief addresses only those
arguments made by TracFone Wireless, Inc. ("TracFone") that merit additional
comment.
i. TRACFoNE MISCHARACTERIZES THE NATURE OF THE DISPUTED ISSUES AND THE
PURPOSE OF THE POST-HEAING BRIEFING.
The post-hearing briefing was ordered at TracFone's request. As stated in
TracFone's April 8, 2011 Letter to the Commission,
. . . By this letter, undersigned counsel for TracFone hereby
advises the Commission that it does believe that briefs
addressing the unresolved legal issues wil assist the
Commission in rendering an appropriate decision in this
matter. During the hearing, it became apparent that
significant diferences regarding important issues continue to
exist. Among those unresolved issues are those regarding
applicabilit of certain taxes and fees on prepaid, non-biled
telecommunications services.
Intervenors did not support post-hearing briefing, but agreed that any post-hearing
briefing should be limited in scope to avoid re-hashing all relevant issues. Intervnors'
Aprl 14, 2011 Joint Response to TracFone's Request. Order No. 32231 subsequently
limited the post-hearing briefing to analysis of TracFone's legal obligations under the
Idaho Emergency Communications Act ("IECA") and the Idaho Telecommunications
Service Assistance Program ("ITSAP").
Now, TracFone describes the choice to limit the scpe to these issues as
"appropriate" becuse "there can be no dispute that TracFone has demonstrated that it
meets all (FCC) and Commission requirements for designation as an (ETC) for the
limited purpse of providing Lifeline service to low-income Idaho consumers, and that
designation of TracFone as an ETC will serve the public interest." TracFone's Post..
INTERVENORS' POST -HEAING REPLY BRIEF ON APPLICAILIT OF IECA AND ITSAP TO TRACFONE
TFW-T -01
2
Hearing Brief at 1-2. TracFone's self-styled explanation of the purpose of Order
No. 32231 mischaracterizes the reason why post-hearing briefing was ordered and
errneously indicates that the IECA and the ITSAP obligations are the only issues in
dispute.
At no time have Intervenors agreed that TracFone has complied with all FCC and
Commission requirements or that ETC designation is in the public interest, and
Intervenors have found no such statement in the record from Staff or the Commission.
The IECA and the ITSAP issues are the sole subjects of post-hearing briefing because
TracFone identified those issues as the sole issues that merited further analysis,
perhaps because TracFone was not satisfied that its position could succeed wihout
further briefing. While Intervenors could take this opportunity to respond to TracFone's
mischaracterization by reiterating all the other reasons why TracFone's petition should
be denied, doing so would violate the limited scope mandated by Order No. 32231.
II. TRACFoNE INCORRECTLY ASSERTS THAT THE IECA AND THE ITSAP ISSUES ARE NOT
RELEVANT TO ETC DESIGNATION.
TracFone's Forbearance Order was expressly conditioned on TracFone's
compliance with E911 requirements applicable to wireless resellers. Federal-State Joint
Board on Universal Service Petition of TracFone Wireless, Inc. for Forbearance from
47 U.S.C. § 214(e)(1)(A) and 47 C.F.R. § 54. 201 (i), 20 F.C.C. Red 15095, 15102
(2005). As thoroughly analyzed in Intervenors' Post-Hearing Brief, the requirements of
the IECA and the ITSAP are unambiguously applicable to prepaid wireless services like
TracFone's. Thus, to comply wih the Forbarance Order and Idaho Law, TracFone
must collect and remit the IECA and the ITSAP fees.
INTERVENORS' POST -HEARING REPLY BRIEF ON APPLICABILITY OF IECA AND ITSA TO TRACFONETF- T -01
3
TracFone disagrees, and if the Commission designates TracFone as an ETC
before TracFone's obligations are confirmed to TracFone's "satisfaction," TracFone wil
undoubtedly refuse to collect and remit the IECA and the ITSAP fees. Thus, these
issues are relevant - if not critical - to the public interest aspects of the ETC
designation.
II. TRACFoNE'S SUGGESTIONS THAT THE ETC DESIGNATION SHOULD BE SEPARATED
FROM THE IECA AND THE ITSAP ISSUES TO PROTECT IDAHO'S POR IS DISINGENUOUS.
TracFone expresses "concern" that delaying TracFone's ETC designation while
engaging in an analysis of the IECA and the ITSAP requirements threatens the safety of
Idaho's low-income population. TracFone's Post-Hearing Brief at 8-9. TracFone
believes the Commission should grant ETC designation now, with knowledge that
TracFone has no intention to collect and remit the IECA and the ITSAP fees, and allow
an indefinite time period to pass while the Idaho Supreme Court or Idaho Legislature
makes a "final determination" or statutory clarification.While providing
telecmmunications services to Idaho's low-income population is an important duty, and
one that Intervenors support, TracFone's manipulation of the public interest analysis
serves no one's interests but TracFone's. Indeed, providing the low-income population
with access to adequately funded emergency services is also an importnt duty, and
one that TracFone appears to have no qualms with avoiding.
IV. SUGGESTING THT LEGISLATIN IS NEEDED TO CLARIFY TRACFoNE'S OBUGATINS IS
NOT THE SAME AS CONCEDING THT TRACFONE HAS NO OBUGATIONS.
As explained in Intervenors' Post-Hearing Brief, the legislative history of the IECA
and the ITSAP demonstrate a concrted effort to include all telecmmunications
carrers, and no exemption for prepaid wireless servces was ever crafted. TracFone
INTERVENORS' POST -HEARING REPLY BRIEF ON APPLICABILITY OF IECA AND ITSAP TO TRACFONE
TFW- T -01
4
invokes statements made at an IECC meeting that suggest legislation may be needed
to collect on prepaid wireless services as support for its argument that TracFone is not
currently required to collect and remit the fees. TracFone's Post-Hearing Brief at 3-5.
TracFone's reliance on these statements is misplaced. No legislation is needed
because the current versions of the IECA and the ITSAP clearly require TracFone to
collect and remit the fees. If such legislation were enacted, it would clarify existing
obligations in response to the "doubt" manufactured by TracFone, not create a new
requirement for prepaid wireless services.
In any event, engaging in an assessment of whether more legislation is neeed
and what IECC's position is on that topic is not relevant or appropriate to determination
of this matter. This evidence is not properly before the Commission because it was
submitted after the record was closed and has not been subject to cross-examination or
rebuttl. Thus, that portion of TracFone's Post-Hearing Brief that discusses the IECC
minutes and the related attachment should be stricken. In addition, cherr-picked
portions of the back-and-forth debate within the IECC are not dispositive. Essentially,
TracFone created the purprted "ambiguity" by advocating its position that its chosen
business model is exempt, and now TracFone attempts to use the perceived nee for a
statutory clarification as evidence that TracFone's argument is correct. TracFone's
"logic," while creative, cannot negate its existing obligations.
v. SIMILARLY, SUGESTING THAT FEES SHOULD BE COLLECTD AND REMmED BY
REAIRS OF PREPAID WIRELESS PHONES AND MINUTES DOES NOT CHANGE EXISTING
STATUTORY REQUIREMENTS.
TracFone suggests that a "bettet' policy would shif the requirement to collec
and remit the IECA and the ITSAP fees frm the prepaid wireless carrer to the retailers.
INTRVENORS' POST-HEAING REPLY BRIEF ON APPLICAILITY OF IECA AND ITSA TO TRAFONETF- T-01
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TracFone's Post-Hearing Brief at 5. Intervenors choose not to comment on the merits
of this idea as they are not relevant. Regardless of what a "bettet' policy may be, the
existing statutes require the prepaid wireless carrers - not the retailers - to collect and
remit the fees. If TracFone would like to shift the burden of compliance to retailers,
TracFone can take that issue up with the legislature. In the meantime, TracFone's
existing obligations should be enforced, reardless of what may come into effect at a
later date.
Vi. CONCLUSION.
In sum, TracFone's Post-Hearing Brief has provided no credible arguments
showing the Idaho legislature exempted prepaid wireless servces like TracFone's from
the statutory schemes in the IECA or the ITSAP. If TracFone is to be designated an
ETC in Idaho, TracFone must show that its services are in the public interest which,
among other things, requires that TracFone comply with the requirements of the IECA
and the ITSAP.
DATED this 13th day of June 2011.
By:~()tj
Cynthia A. Melilo
GIVENS PURSLEY LLP
Attorneys for Idaho Telecm Alliance
By:~ryl1~ In
RICHARDSON & O'LEARY, PLLC
Attorneys for CTC Telecm, Inc.,
dba CTC Wireless
INTERVENORS' POST -HEARING REPLY BRIEF ON APPLICAILITY OF IECA AND ITSAP TO TRACFONE
TFW-T-09-01
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CERTIFICATE OF SERVICE
I hereby certify that on this 13th day of June 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, 1083702
jean. jewell(äpuc.ldaho.gov
Neil Price
Idaho Public Utilties Commission
472 West Washington Street
Boise, 10 83702
Neil.price(äpuc.ldaho.gov
Mitchell F. Brecher
Debra McGuire Mercer
GREENBERG TRAURIG, LLP
2101 L Stret, NW, Suite 1000
Washington, DC 20037
brecherm(ägtlaw.com
mercerdm(ägtlaw.com
Dean J. Miler
McDEVITT & MILLER LLP
420 West Bannock Street
Boise, 10 83702
joeCãmcdevitt-m iler. com
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