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Home My WebLink About20110711Answer to Allied's Motion.pdf¡ii Davis Wright1:.. Tremaine LLP Suite 2300 1300 SW Fifth Avenue Portland, ()R 97201-5630 RECE 0 Mark P. Trinchero 503.778.5318 tel 503.778.5299 fax 20ll JUl II At~ gi: L~3 marktnchero(fdwt.com July 8, 2011 VIA Email: jean.jewellW2puc.idaho.gov Ms. Jean Jewell, Commission Secreta Idaho Public Utilities Commission 472 W Washington PO Box 83720 Boise, ID 83720 Re: T-Mobile West Corporation's Answer to Alled Wireless Communications Corporation's Motion to Defer Deliberations Case No. TMW-T-10-01 Dear Ms. Jewell: Enclosed please find T-Mobile West Corporation's Answer to Alled Wireless Communications Corporation's Motion to Defer Deliberations. The original and seven copies are being sent overnight via UPS. Very trly yours, Davis Wright Tremaine LLP~;K Mar \lchero MPT/ajg Enclosures DWT i 7559732vl 0048172-000324 I Anchorage Bellevue Los Angeles 100%~ 1 New York Portland San FranciSco I Seattle Shanghai Washington. D.C.ww.dwt.com RECEIVED David Daggett, ISB #5936 DAVIS WRGHT TREMAINE, LLllll JUL I I AM 9: 41 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 daviddaggett~dwt.com (206) 757-8066 Mark P. Trinchero, OSB #88322 DAVIS WRIGHT TREMAINE, LLP 1300 SW Fift Avenue, Suite 2300 Portland, Oregon 97201 marktinchero~dwt.com (503) 778-5318 Teri Ohta Senior Corporate Counsel T-Mobile USA, Inc. 12920 SE 38th Street Bellevue, Washington 98006 Teri.Ohta~t-mobile.com (425) 383-5532 Attorneys for T-Mobile West Corporation BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION IN THE MATTER OF THE APPLICATION OF ) T-MOBILE WEST CORPORATION FOR ) DESIGNATION AS AN ELIGIBLE ) TELECOMMUNICATIONS CARRER ) PURSUANT TO 47 USC § 214(e)(2). ) ) ) ) CASE NO. TMW-T-IO-Ol T -MOBILE WEST CORPORATION'S ANSWER TO ALLIED WIRELESS COMMUNICATIONS' "MOTION TO DEFER DELIBERATIONS" The "Motion to Defer Deliberations" submitted by Alled Wireless Communcations Corp. ("Allied") has no foundation in the rules ofthe Idaho Public Utilities Commission ("Commission") and caps a series of delaying tactics that amount to abuse of process by Allied. T-MobileWest Corporation ("T-Mobile") respectfully asks that the motion be denied or strcken so that a decision on the merits ofT-Mobile's application may be rendered without fuer delay. Page i - T-MOBILE'S ANSWER TO ALLIED'S "MOTION TO DEFER DELIBERATIONS" DWT 17557885vl 0048172-000324 Alled's delaying tactics in this proceeding amount to an egregious abuse of process. T-Mobile submitted its application for designation as an Eligible Telecommuncations Carer ("ETC") on December 14,2010.1 The application was made available on the Commission's web site the next day, except for confdential material including T-Mobile's network improvement plan? If Allied was trly concerned about the details of that confidential plan-as it claimed in its later comments-it should have intervened then and sought discovery. Instead, Allied waited. On March 20, 2011, AT&T anounced plans to acquire T-Mobile's parent company, T-Mobile USA, Inc. If Allied was trly concerned about the impact of the merger on T-Mobile's ETC application-as it claimed in its later comments-it should have intervened and sought discovery. But again, Alled waited. On May 12, 2011, the Commission ordered the application of Modified Procedure and set a twenty-one day period for written comments.3 Despite its later-avowed concerns about confdential plans and the merger, Alled again chose not to intervene and seek discovery. Instead; Alled waited until the last possible day, June 2, 2011, to submit a set of comments alleging concerns about T-Mobile's application.4 Alled's comments focused on two issues: (1) the impact of the merger (which Allied had known about since March), and (2) speculation about possible deficiencies in T-Mobile's network improvement plan on fie with the 1 In the Matter of the Application ofT-Mobile West Corp.for Designation as an Eligible Telecommunications Carrier, Case No. TMW-T-I0-0l, Application (fied December 14,2011).2 See Internet Archive, , htt://web.archive.orglweb/20101215220946/htt://www.puc.dao.gov//cases/summary/TMWTl 00 1 .html (showing that the application was available on Dec. 15,2010 at 2:49 pm).3 Notice of Application Order No. 32240, Case No. TMW-T-1O-0l (May 12,2011). 4 Alled was joined in these comments by Idaho Telecom Allance ("ITA"), CTC Telecom, Inc. ("CTC"), Syringa Wireless, LLC ("Syringa"), and Rural Telephone Company ("RTC"). None ofthose entities has moved to intervene or made even informal requests for information concerning the merger or T-Mobile's network improvement plans. Comments of Allied Wireless Communications Corporation, Idaho Telecom Allance, CTC Telecom, Inc., Syringa Wireless, LLC and Rural Telephone Company; Protest to Use of Modified Procedure; and Request for Hearing ("Allied's Comments"), Case No. TMW-T-I0-0l (June 2, 2011). Page 2 - T-MOBILE'S ANSWER TO ALLIED'S "MOTION TO DEFER DELIBERATIONS" DWT 17557885vl 0048172-000324 Commission since mid-December 2010 (which Alled had made no attempt to request).5 Allied's professed alar regarding the merger and T-Mobile's "secret build plan,,6 is flatly inconsistent with Alled's repeated failure to take steps to obtan timely discovery on the merger or build plan. That suggests that Allied's real motive is to extend these proceedings as long as possible, and thereby delay the entr of additional competition in the study areas and wire centers included in T-Mobile's application that would reduce Allied's own share of universal service support dollars due to the Federal Communcations Commission's cap on support available to competitive ETCs.7 Alled finally petitioned to intervene on June 7, 2011, nearly six months after T-Mobile's application was filed.8 Alled's petition to intervene was granted on June 16,2011,9 giving Allied an immediate right to seek discovery under Rule 222 of the Commission's Rules of Procedure. io But again Alled waited. On June 27, 2011 the Commission reaffirmed that T-Mobile's application would be processed under Modified Procedure, rejecting the drawn-out procedure and evidentiar hearng proposed by Alled in its comments. At that point T-Mobile's application, pending for over six months, was fully submitted and ripe for an imminent decision by the Commission. Only then, at the eleventh hour-when Alled's delaying tactics appeared to have failed-did Allied suddenly discern an immediate need to propound twenty-four discovery requests. Alled now attempts to use these last-minute discovery requests as the basis for the 5 See Alled's Comments, at 3 (enumerating these two issues). 6 Comments of Alled, et aI., Case No. TMW-T-I0-0l, at 8 (June 2, 2011). 7 It is wort noting that Alled waited until after it had secured ETC designation from this Commission, on March 22,2011, before inserting itself into T-Mobile's application process.8 Petition to Intervene, Case No. TMW-T-lO-Ol (fied June 7, 2011). 9 Intervention Order No. 32265, Case No. TMW-T-lO-Ol (June 16,2011). io See IPUC Rules of Procedure, Rule 222 ("(A)ll paries to a proceeding have a right of discovery... "). Page 3 - T-MOBILE'S ANSWER TO ALLIED'S "MOTION TO DEFER DELIBERATIONS" DWT 17557885vl 0048172-000324 instant "Motion to Defer Deliberation," stating that "(tJhis Motion is made and based upon the grounds and for the reasons that Allied Wireless on ths date has propounded written discovery requests to the Applicant T-Mobile."ii Ths naked attempt to delay a decision is outrageous. Allied could have intervened and sought discovery in December when the application was filed, in March when the merger was anounced, in May when Modified Procedure was ordered, or in June when it filed its comments. It could have submitted discovery requests on June 16, when the Commission granted its belated petition to intervene. Having declined those numerous opportities, it now demands that ths proceeding grind to a halt for its belated discovery. Compounding this abuse of process is the broad scope of the requests, using this proceeding to seek such irrelevant matter as "unedacted copies of all motions and briefs filed by any pary in the Texas PUC case.,,12 The Commission should reject Alled's motion as an abuse of process plainly designed to fuer delay a proceeding that has already taen twce as long as Alled's ETC application.13 The Commission's Rules of Procedure provide no basis for Alled's motion. The rules neither provide for a "Motion to Defer Deliberations," nor otherwse provide that proceedings are stayed durng discovery. No motions to defer appear to have been filed in other cases concerning ETC applications. In fact, T -Mobile is unaware of such a motion having ever been fied with this Commission. Allied has spun this new delaying motion out of whole cloth. The only rue that Allied cites in support of its motion is Rile 056,14 the general rule governng motions. But Allied has failed to even follow that rule, which requires that motions ii Motion to Defer Deliberations, Case No. TMW-T-lO-Ol, at 2 (July 1,2011). . 12 First Production Request of Alled Wireless Communications Corporation to T-Mobile West Corporation, ir 23. 13 See Alled Wireless Communications Corp., Application for ETC Designation, Case No. ALL-T-I0-0l, opened Dec. 16, 2010, with a Final Order issued on March 22, 201 1.14 Motion to Defer Deliberations, Case No. TMW-T-lO-Ol, at 1. Page 4 - T-MOBILE'S ANSWER TO ALLIED'S "MOTION TO DEFER DELIBERATIONS" DWT 17557885vl 0048172-000324 must (1) "(fJully state facts upon which they are based," and (2) "(r)efer to the paricular provision of statute, rule, order, notice or other controllng law upon which they are based.,,15 Allied's motion fails because it states no facts that provide a basis for the motion. Moreover, the only "paricular provision" to which Alled's motion refers is Rule 056 itself. This tye of circular bootstrapping fails to satisfy Rule 056. If reference to Rule 056 itself satisfied the requirement to cite a "paricular provision," the requirement would be meaningless. But it is not, and Allied's motion is therefore improper. For these reasons, T -Mobile requests that the Commission deny, or in the alternative strike, Alled's "Motion to Defer Deliberations" and allow T-Mobile's application to be decided on the merits without fuer delay. DATED: July 8, 201 1. T -MOBILE WEST CORPORA nON By:' ark P. Trinchero, OSB #88322 DAVIS WRIGHT TREMAINE, LLP 1300 SW Fift Avenue, Suite 2300 Portland, Oregon 97201 marktinchero~dwt.com (503) 7785318 . David Daggett, ISB #5936 DAVIS WRGHT TREMAINE, LLP 1201 Third Avenue, Suite 2200 Seattle, WA 98101 3045 daviddaggett~dwt.com (206) 757 8066 Teri Ohta Senior Corporate Counsel T Mobile USA, Inc. 12920 SE 38th Street Bellevue, Washington 98006 Teri.Ohta~t mobile.com (425) 3835532 15 IPUC Rules of Procedure 056(1)-(2). Page 5 - T-MOBILE'S ANSWER TO ALLIED'S "MOTION TO DEFER DELIBERATIONS" DWT 17557885vl 0048172-000324 . CERTIFICATE OF SERVICE I hereby certify that, on July 8, 2011, I caused to be served, via the methode s) indicated below, tre and correct copies of the foregoing document upon: Jean Jewell, Secreta Hand Delivered U Idaho Public Utilities Commission U.S. Mail U 472 West Washington Street Fax U PO Box 83720 UPS U Boise,ID 83720-0074 Email (Xl jean.jewell~puc.idaho.gov Cyntha A. Melilo, Esq.Hand Delivered U Givens Pursley LLP U.S. Mail U 601 N Banock Street Fax U PO Box 2720 UPS U Boise,ID 83701 Email (Xl cam~givenspursley.com Dean J. Miler Hand Delivered U McDevitt & Miler LLP U.S. Mail U PO Box 2564-83701 Fax U Boise,ID 83702 UPS U j oe~mcdevitt -miler .com Email (Xl Brooks E. Harlow Hand Delivered U Lukas, Nace, Gutierrez & Sachs, LLP U.S. Mail U 8300 Greensboro Dr Ste 1200 Fax U McLean V A 22102 UPS U bharlow~fcclaw.com Email (Xl DWT 17559751vl 0048172-000324