20110826Opposition to Reconsideration.pdf

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Cynthia A. Melilo (ISB # 5819)
GIVENS PURSLEY LLP
601 West Bannock Street
P.O. Box 2720
Boise, 10 83701
Telephone: [phone]
Facsimile: [phone]
Email: camcægivenspursley.com
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2011 P,UG 26 PM 3: 41
Attorneys for Idaho Telecom Allance
Molly O'Leary (ISB # 4996)
Richardson & O'Leary PLLC
515 North 27th Street
P.O. Box 7218
Boise, 10 83707
Telèphone: [phone]
Facsimile: [phone]
E-Mail: moiiycærichardsonandoleary.com
Attorneys for CTC Telecom, Inc.
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 -09-01
INTERVENORS' OPPOSITION
TO TRACFONE WIRELESS,
INC.'S PETITION FOR
RECONSIDERATION
The Idaho Telecom Allance (lIITA"), by and through its attorneys of record,
Givens Pursley LLP, and CTC Telecom, Inc., dba CTC Wireless, by and through its
attorneys of rerd, Richardson & O'Leary, PLLC (collectively, "Intervenors"), hereby
jointly file this Opposition to Tracfne Wireless Inc.'s (lITracFone's") Petition for
INTERVENORS' OPOSITION TO TRACFONE WIRELESS, INC:S PETITION FOR RECONSIDERATION
TFW-T-09-1
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Reconsideration of the Public Utilty Commission ("Commission") Order No. 32301
(July 29, 2011) (the "Ordet').
i. TRACFoNE'S DISAPPOINTMENT WI THE LEGAL CONCLUSIONS DOES NOT RENDER THE
COMMISSION'S LEGAL CONCLUSIONS WORTH RECONSIDERAnON.
A Petition for Reconsideration must "set forth specifically the ground or grounds
why the petitioner contends that the order or any issue decided in the order is
unreasonable, unlawful, erroneous or not in conformity with the law." IDAPA
31.01.01.331.01. The Petition is essentially nothing more than an attempt to rehash the
same legal analysis already considered and rejected by the Commission. While
TracFone reiterates its opposition, the arguments do not demonstrate that the Order
was "unreasonable, unlawful, errneous or not in conformity with the law." Id.
Essentially, this Petition asks the Commission to reach the opposite conclusion base
upon the same legal arguments. The Comrnission ruled corrctly and need not
reconsider the Order.
TracFone initiated this process almost two years ago. The Commission
conducted an extensive briefing and hearing process to enable full understanding of
TracFone's qualifications for ETC designation. The Commission thoroughly considered
the statutory and regulatory analyses of all partes and looked to sources of persuasive
authority frm relevant state agencies and courts in other jurisdictions. Base upon the
facts and arguments presented, the Commission rejected TracFone's position. The
Commission's analysis was well-reasoned and supported by the facts in the recrd.
TracFone's disappointment in the decision does not render the decision mistaken or
errneous.
INTERVNOS' OPPOITION TO TRACFONE WIRELESS, INC:S PETITION FOR RECONSIDERATION
TFW-T -01
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Even if the Commission's determination about the applicabilty of the ITSAP and
the IECA surcharge was not dispositive, the Commission's broad statutory authority to
consider the public interest gives the Commission discretion to deny TracFone's
application for ETC designation for any combination of reasons. The Commission fully
explained the reasons for denying TracFone's application, and such reasons are within
the Commission's allowable scope of authority.
II. TRACFoNE'S ATTEMPT TO SUBMIT FACTUAL EVIDENCE AFTR THE CLOSE OF THE
RECORD SHOULD BE REJECTED.
TracFone places great emphasis on its problems with the IECC's position and its
impact on the Commission's decision. Most of the facts submited in opposition to
consideration of IECC's position were not made a part of the record when the record
was stil open. TracFone should have obtained this information and made these
arguments while the proceedings were opened. All evidence that was not in the recrd
prior to the record being closed should be disrearded. In any event, the motivations of
IECC staff are irrelevant, and TracFone is incorrect to assert that the Commission's
decision was "based solely on a lettet' from the IECC. Petition at 4. The Commission
stated the many reasons for its decision, which reflect no violation of any statute or rule
establishing the Commission's authority. There is no need to reconsider the facts or
arguments related to IECC.
INTERVENOS' OPPOSITION TO TRACFONE WIRELESS, INC:S PETITON FOR RECOIDERATION
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II. TRACFoNE HAS MADE ALL THE ARGUMENTS IT HAS TO MAKE IN THE ORIGINAL
PROCEEDINGS AND IN THIS PETTION. THUS, THERE IS NO NEED FOR FURTHER BRIEFING
OR ORAL ARGUMENT.
The Commission rules require, in addition to the grounds for reconsideration, "a
statement of the nature and quantity of evidence or argument the petitioner wil offer if
reconsideration is granted." IDAPA 31.01.01.331.01. TracFone presented all of the
arguments it had in the original proceedings and restates these arguments in the
Petition. All of these issues have been previously addressed by the Parties. TracFone
improperly submits facts that were available but not obtained before the record closed
and applies these to previously-made arguments. Ultimately, TracFone has nothing to
offer that is different than what has already been offere and analyzed by the Parties
and the Commission. The Petition should be denied, and there should be no
opportunity to "start ovet' with further briefing or oral argument.
IV. CONCLUSION.
The Commission's Order No. 32301 was based upon substantial and competent
evidence in the record. Intervenors respectully request that the Commission issue an
Order affrming its findings in Order No. 32301 and denying TracFone's Petition for
Reconsideration.
INTERVENORS' OPPOITION TO TRCFONE WIRELESS, INC:S PETITION FOR RECONSIDERATION
TFW-T -09-1
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DATED this 26th day of August 2011.
By:
By:
e
~li~1t
Cnthia A. Melill(;
GIVENS PURSLEY LLP
Attorneys for Idaho Telecom Allance
t ~aJrJf ~Moliy O'Leary /
RICHARDSON & O'LEARY, PLLC
Attornys for CTC Telecm, Inc.,
dba CTC Wireless
INTERVENORS' OPPOITION TO TRCFONE WIRELESS, INC:S PETITON FOR RECOSIDERATION
TFW-T -01
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CERTIFICATE OF SERVICE
e
I hereby certify that on this 26th day of August 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, 10 83702
jean. jewellcæpuc. Idaho.gov
Neil Price
Idaho Public Utilties Commission
472 West Washington Street
Boise, 10 83702
Neil.pricecæpuc.ldaho.gov
Mitchell F. Brecher
Debra McGuire Mercer
GREENBERG TRAURIG, LLP
2101 L Street, NW, Suite 1000
Washington, DC 20037
brechermcægtlaw.com
mercerdmcægtlaw.com
Dean J. Miler
McDEVITT & MILLER LLP
420 West Bannock Street
Boise, 10 83702
joecæmcdevit-miller.com
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~(j)!/dll¡Cynthia A. Melilõ
INTERVNORS' OPPOSITION TO TRCFONE WIRELESS, INC:S PETITION FOR RECOSIDERATION
TFW-T-0901
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