20110624Response to Comments.pdf

iii Davis \Nright
1:.. Tremaine LLP
Suite 2300
1300 SW Fift Avenue
Portland, OR 97201-5630
RECEIVED MarkP. Trinchero
503.778.5318 tel
503.778.5299 fax20r I JUN 24 AM 9: 32
Uïlt.
marktnchero~dwt.com
June 23, 2011
VIA Email: jean.jewellCápuc.idaho.gov
Ms. Jean Jewell, Commission Secretar
Idaho Public Utilities Commission
472 W Washington
PO Box 83720
Boise, ID 83720 ~e-~9
Re: T-Mobile West Corporation's Response tol:irst Production Rea;est oftlie €öi:rissronS1
Case No. TMW-T-1O-01
Dear Ms. Jewell:
Enclosed please find T-Mobile West Corporation's Response to Comments of Alled Wireless
Communications Corporation, Idaho Telecom Alliance, CTC Telecom, Inc., Syrnga Wireless,
LLC, and Rural Telephone Company's and Protest to Use of Modified Procedure and Request
for Hearng. The original and seven copies are being sent overnight via UPS.
Very trly yours,
DWT 17464467vl 0048172-000324
I Anchorage
Bellevue
Los Angeles
100%ti
I New
York
Portland
San Francisco I Seattle
Shanghai
Washington. D.C.ww.dwt.com
David Daggett, ISB #5936
DAVIS WRGHT TREMAINE, LLP
1201 Thrd Avenue, Suite 2200
Seattle, WA 98101-3045
daviddaggett(Ðdwt.com
[phone]
Mark P. Trinchero, OSB #88322
DAVIS WRGHT TREMAINE, LLP
1300 SW Fift Avenue, Suite 2300
Portland, Oregon 97201
marktchero(Ðdwt.com
[phone]
Teri Ohta
Senior Corporate Counsel
T-Mobile USA, Inc.
12920 SE 38th Street
Bellevue, Washington 98006
Teri.Ohta(Ðt-mobile.com
[phone]
Attorneys for T-Mobile West Corporation
RECEIVED
ZOI I JUN 24 AM 9: 33
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 U.S.C. § 214(e)(2). )
)
)
)
)
)
)
)
)
)
)
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CASE NO. TMW-T-IO-Ol
T-MOBILE WEST
CORPORATION'S RESPONSE
TO COMMENTS OF ALLIED
WIRELESS
COMMUNICATIONS
CORPORATION, IDAHO
TELECOM ALLIANCE, CTC
TELECOM, INC., SYRNGA
WIRELESS, LLC AND RURAL
TELEPHONE COMPANY;
PROTEST TO USE OF
MODIFIED PROCEDURE; AND
REQUEST FOR HEARING
I. Introduction
T-Mobile West Corporation ("T-Mobile") submitted its application for designation as an
Eligible Telecommunications Carier ("ETC") on December 14,2010. Four months later,
Deputy Attorney General Don Howell released a Decision Memorandum recommending that the
Public Utilities Commission (the "Commission") process T-Mobile's application though
Modified Procedure. On May 12, 2011 the Commission issued an order applying Modified
Procedure to the application, noting the effectiveness of Modified Procedure in past ETC cases.
Alled Wireless Communcations Co. ("Allied"), Idaho Telecom Allance ("ITA"), CTC
Telecom, Inc. ("CTC"), Syrnga Wireless, LLC ("Syrnga"), and Rural Telephone Company
("RTC") (collectively the "Protesters") ask the Commission to reverse that decision. There is no
reason to do so.
Both the Decision Memorandum and the Commission's Order were issued after AT&T
anounced plans to acquire T-Mobile's parent company, T-Mobile USA, Inc.. Both the Order
and Decision Memorandum reflect a determination that the potential acquisition does not
provide reason to depar from the Commission's practice of considering ETC applications under
Modified Procedure. As T-Mobile has previously informed the Commission, T-Mobile will
remain the designated ETC legal entity following completion of the proposed merger, and will
continue to shoulder the obligations of an ETC in Idaho. T -Mobile will remain subject to the
Commission's supervision in caring out its commitments to rual Idaho customers. In light of
these facts, the Commission correctly decided in this case not to depar from its practice of
applying Modified Procedure to ETC applications. As explained below, the Protesters'
arguments to the contrar are based on speculation, not information, and have no merit.
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II. This Commission has long held that Modifed Procedure is appropriate for
ETC applications.
The Commission should not abandon the use of Modified Procedure in ths case, as
suggested by the Protesters. For over a decade, ETC applications have been processed under
Modified Procedure. Modified Procedure not only benefits applicants, but benefits consumers
by allowing designated carers to begin investing USF fuds into service and network expansion
sooner rather than later. Alled acknowledges that it has recently been the beneficiary of
Modified Procedure. Alled's ETC application, fied on December 16,2010, two days after T-
Mobile's application was filed, was processed under Modified Procedure in just over thee
months1 and approved on March 22, 2011, merely three months ago. Indeed, every single one of
the Protesters' ETC applications was processed under Modified Procedure. Protester ITA filed
an ETC application on behalf of nineteen members including Protester Rural Telephone
Company, which was processed under Modified Procedure in just over three months and
approved on December 17, 1997.2 Protester Syringa's ETC application was processed under
Modified Procedure in about four months and approved on August 28,2008.3 Protester CTC's
ETC application was processed under Modified Procedure in just over three months, and
approved July 24,2009.4 A review of the Commission's files shows that that Modified
Procedure has been applied to every ETC application in the last five years, that Modified
i In the Matter of the Application of Alled Wireless Communications Corp. dba Alltel Wireless for Designation as
an Eligible Telecommunications Carrier, Case No. ALL-T-I0-0l (filed December 16,2010, set for Modified
Procedure on Januar 26,2011, and approved on March 22,2011).2 In the Matter of the Idaho Telephone Association's Request for Eligible Telecommunications Carrier Designation
on BehalfofIts Member Local Exchange Carriers, Case No. GNR-T-97-17 (filed Sept. 11,1997, set for Modified
Procedure on October 22, 1997, and approved on December 17, 1997).
3 In the Matter of
the Application of Syringa Wireless LLCfor Designation as an Eligible Telecommunications
Carrier under 47 Us.c. § 214(e)(2), Case No. SYR-T-08-01 (fied April 20, 2008, set for Modified Procedure on
June 11,2008, and approved on August 28,2008).4 In the Matter of the Application ofCTC Telecom Wireless LLC for Designation as an Eligible Telecommunications
Carrier CTL-T-09-01 (fied April 23, 2009, set for Modified Procedure on May 29,2009, and approved on July 24,
2009).
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Procedure is appropriate concerning CMRS applications in rual areas, and that Modified
Procedure is appropriate where multiple intervenors submit comments.5
The Commission should not abandon the use of Modified Procedure in this case and set
the matter for hearng, as Protestors suggest. This Commission has processed ETC applications
on modified procedure even when there have been intervenors opposed to the grant of ETC
designation. Edge Wireless was the first wireless ETC applicant granted designation in rual
ILEC territories, including the territory of eight IT A members.6 Edge Wireless filed its
application on Januar 22,2007. Representing the interests of its members, ITA intervened to
oppose Edge' application.7 There, as here, ITA argued that Modified Procedure was
inappropriate and requested a hearng;8 ITA also fied a Motion for a Staff Investigation.9 Staff
supported Modified Procedure, as it does here, and opposed ITA's proposed investigation as an
imprudent use of Staff resources. 10 The Commission agreed-denying ITA's Motion for a Staff
Investigation and granting Edge's application under Modified Procedure on June 29, 2007.11
Inland Cellular Telephone Company ("Inland") was another wireless ETC applicant
seeking designation in areas served by other carers, including rural ILEC study areas.12 Inland
fied its application on June 29, 2006, and the Commission issued a Notice of Modified
Procedure on October 19,2006. ITA intervened in opposition to Inland's application on behalf
5 See, e.g., In the Matter of
the Petition of Edge Wireless, LLCfor Designation as an Eligible Telecommunications
Carrier under 47 Us.c. § 214(e)(2) ("Edge Wireless"), Case No. EDG-T-07-01 (fied Januar 22,2007, set for
Modified Procedure on Februar 12, 2007 and approved under Modified Procedure on June 29, 2007 after the
intervention of two parties); In the Matter of the Petition of Inland Cellular Telephone Company for Designation as
an Eligible Telecommunications Carrier under 47 US.c. § 2I4(e)(2) ("Inland Cellular"), Case NO.INC-T-06-02
(fied June 29, 2006, set for Modified Procedure on October 19,2006 and approved in par on December 28,2006,
after the intervention of four parties).6 Edge Wireless, Case No. EDG-T-07-01, Idaho Telephone Association's Protest and Comments, at 1.
7 Edge Wireless, Case No. EDG-T-07-01, Idaho Telephone Association's Petition to Intervene, at 2.
8 Edge Wireless, Case No. EDG-T-07-01, Idaho Telephone Association's Protest and Comments, at 4.
9 Edge Wireless, Case No. EDG-T-07-01, Order No. 30360, at 1.10 Edge Wireless, Case No. EDG-T-07-01, Decision Memorandum, Februar 6, 2007, at 1; Order No. 30360, at 10.
II Edge Wireless, Case No. EDG-T-07-01, Order No. 30360, at 14.
12 Inland Cellular, Case No.lNC-T-06-02, Order No. 30212, at 2.
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of its members.
13 Potlatch Telephone Company, Inc., a rual ILEC, also intervened, as did
Citizens Telecommunications ofIdaho d/b/a Frontier Communications ofIdaho, and WWC
Holdings Co., Inc. d//a Allte!. 14 The Commission fully considered the comments of the
intervening paries without deparing from Modified Procedure, ultimately granting Inland's
application in par and denying it as to rual and partially rual areas. The Inland proceeding
shows that Modified Procedure is sufficient to allow the Commission to address any legitimate
concerns raised by intervenors.
In the Inland Cellular and Edge Wireless proceedings, the Commission faced novel issues
concernng possible ETC designation for wireless cariers in rual ILEC study areas.
Nonetheless, the Commission determined that Modified Procedure was appropriate for
addressing those new issues, ultimately rejecting ETC desigiation for Inland Cellular in rual
ILEC study areas and granting designation for Edge Wireless in rual ILEC study areas. Nearly
four years after the Commission's final order in the Edge Wireless docket, the designation of a
wireless carier as an ETC in rual ILEC study areas is no longer a novel issue. Modified
Procedure was appropriate when IT A intervened on behalf of its members in the Inland and Edge
Wireless proceedings in 2006 and 2007. It is even more appropriate for T-Mobile in 2011, now
that the public interest issues of CETC designations in rual ILEC study areas are long settled.
Even if the Protestors had successfuly identified unique issues concerning T-Mobile's
application, which is not the case, the Edge Wireless and Inland Cellular proceedings show that
Modified Procedure is sufficient to deal with such issues.
13 Inland Cellular, Case No. lNC-T-06-02, Idaho Telephone Association's Petition to Intervene, at 1.
14 Inland Cellular, Case No. lNC- T -06-02, Order No. 30212, at 2; Comments of the Potlatch Telephone Company,
Inc., at 2.
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Consistent with precedent, the Commission should continue to process T-Mobile's
application under Modified Procedure. The Commission should reject the Protesters' request for
a hearing in this matter. The Protesters have presented no compelling justification for the
Commission to deviate from its longstading precedent.
III. The Protesters' opposition is not based on the public interest, but instead
reflects their own self-interest in avoiding rural competition in rural areas
and retaining a larger slice of USF funding.
In their comments, the Protesters present a parade of horrbles that they speculate might
follow designation ofT-Mobile as an ETC. Those assertions are a naked attempt to avoid
enhanced competition in rual areas of Idaho. The unusual alliance of Alled, an independent
competitive ETC ("CETC"), and the rual ILECs, including the wireless affiliates of the rual
ILECs,15 , appears to be united by one principle-their financial interest in protecting profits-
and not by any concern for rual consumers that would benefit from T-Mobile's investments and
expanded service choices.
Alled, CTC and Syrnga, all CETCs in Idaho, plainly have an interest in protecting their
own share of USF fuds. As pointed out by the Protesters and Staff, their share of USF support
would be reduced ifT-Mobile is designated an ETC because ofthe FCC's interim cap on high-
cost USF support for competitive ETCs. Effective May 1, 2008, the FCC capped anua CETC
support for each state at the level of support that CETCs were eligible to receive in March 2008.
Now that Alled, Syrnga and CTC have gained ETC designation-though the modified
procedure they now oppose-they wish to foreclose consumer choice in rual areas in order to
maintain their share of USF dollars.
15 CTC, Syringa and RTC are wireless affliates ofIdaho rual ILECs.
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Equally plain, the RLECs have an interest in prohibiting, or at least delaying, the entr of
additional competition in the 13 Idaho rural telephone company study areas included in T-
Mobile's application. Both the CETC and RLEC Protesters stand to gain by preventing, or
substatially delaying, the expansion ofT-Mobile servce in rural markets that ETC designation
would bring. Rural customers, in contrast, stad to lose the benefits of an expanded T -Mobile
network in rual areas. The Protesters' pecuniar interests are not aligned with the public
interest.
The Protesters' recommendation that the Commission should abandon Modified
Procedure and "should commence an adjudicative proceeding, set the matter for hearing, and
ultimately deny the petition," serves their goal of delaying and preventing more choices for rual
consumers. T-Mobile believes the public interest is best served by expeditiously facilitating
additional telecommuncations options for rul consumers. Because the Protesters desire delay
as one of their objectives, any drawn out process that ultimately confirms Stafs conclusions
that designation ofT-Mobile is in the public interest benefits the Protesters, who get to keep their
curent share of USF fuds and block increased competition in rual areas, but hars consumers.
iv. Based on an objective review of all information, Staff supports T -Mobile.
Staff recommended Modified Procedure for T -Mobile's application.16 Since the
Commssion's decision to adopt Modified Procedure, Staffhas completed its review of
T-Mobile's application, which includes a map of planed cell sites and a detailed network
improvement plan describing the substantial investments T -Mobile will make with universal
service fuds during the first two years of support. 17 Staf issued a production request to
16 Decision Memorandum, at 3.
17 The Protesters refer to these as "secret build plans". However, Alled and all other CETCs fie their build plans
under seal with the Commission to protect against disclosure of these trade secrets (i.e., where new cell sites wil be
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T-Mobile concerning the proposed merger with AT&T, and reviewed T-Mobile's response to
that production request. After fully analyzing the application, including the maps and network
improvement plan, Staf concluded that T-Mobile's ETC designation "is in the public interest
and should be approved."18 With respect to the network improvement plan, Staf specifically
noted that T-Mobile presented "detailed information outlining its network improvement plan for
2011 and 2012," expressly determined that the plan is reasonable, and concluded that the anual
recertification process will effectively hold T -Mobile accountable for implementing the plan.
19
Despite the "greater emphasis on scrutinizing the public interest issues for ETC Applications in
rual service areas," which Staff noted that some other carrers have failed to meet,20 Staf
concluded that "T-Mobile's Application demonstrates that ETC designation is in the public
interest.,,21 Staff also cited the increased consumer choice that T-Mobile will provide in
recommending approval.22
Staf has no pecuniar interest in T-Mobile's application, unlike the Protesters, and
Staffs conclusion is informed by all the data in the application, including T-Mobile's maps,
network improvement plan, and response to Staff s production request. Whle the Protesters hurl
numerous arguents against T-Mobile's application, none of those arguments present any new
information that was not already considered by Staff when it made its recommendation. Indeed,
most ofthe Protesters' arguments are based on less information, not more. The Protesters have
no substantive information to counter Staff s analysis, only hyperbole and speculation. As
built) to competitors. There is nothing out of the ordinar about T-Mobile having sought confidential treatment of
its build plans in this case.18 Staff Comments, at 4 and 9.
19 Staff Comments, at 6.
20 Staff Comments, at 5 (citing IAT Communications, NPCR and Inland Cellular Telephone Company, which was
partially denied).21 Staff Comments, at 6.
22 Staff Comments, at 9.
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explained below, these attempts to delay or deny T-Mobile's ETC Application based on
misinformation and speculation should be rejected.
V. The Protesters' warnings about loss ofUSF are speculative, unfounded, and
inconsistent with recent FCC precedent and statements.
The Protesters' assert that the FCC may require AT&T to relinquish USF support as a
merger condition and war that "(i)f recent FCC history is a guide, not only will this happen, but
the relinquished support wil not return to Idaho." This ominous prediction, in fact, is not
only inconsistent with T-Mobile's plans, but is also inconsistent with recent FCC action. First,
the Protesters rely on FCC orders that are out-of-date. The Verizon/Alltel and Sprint/Clearwire
merger orders were issued within three days of each other in the Fall of2008, and accepted
volunta commitments by the applicants to phase-down CETC support.23 However, the
Protesters ignore a more recent FCC decision that reached the opposite conclusion of those
earlier orders. In 2009, the FCC (under curent Chairman Genachowski) approved Centennial's
transfer of licenses to AT&T without requiring either company to relinquish or phase-down
CETC support.24 This latter decision, decided under the curent Chairman of the FCC, provides
better guidance for how the Commission might approach AT&T's proposed merger with T-
Mobile.
The Centennial result is entirely consistent with FCC Chairman Genachowski' s stated
desire to address CETC support as par of the Commission's effort concerning comprehensive
23 See VerizoniAlltel Order, Memorandum Opinion & Order & Declaratory Ruling, FCC 08-0258,' 197 (Nov. 10,
2008) (citing the "unique facts" of the transaction); Sprint/Clearwire Order, Memorandum Opinion & Order, FCC
08-259' 108 (November 7, 2008).24 See Applications of AT&T and Centennial Communications Corp. For Consent to Transfer Control of Licenses,
Authorizations and Spectrum Leasing Arrangements, Memorandum Opinion & Order, 24 FCC Rcd 13915 (reI. Nov.
5,2009).
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universal service and intercarer compensation reform.25 In 2011, the FCC opened a series of
proceedings to develop a record for comprehensive reform of the Universal Service Fund. FCC
Commissioners have indicated that they intend to act quickly:
When we voted unanmously to approve the USF/ICC
Transformation NPRM last month, each of us made clear that we
are committed to reforming the Universal Service Fund (USF) and
the Intercarier Compensation (ICC) system, and to doing so as
soon as possible. We must eliminate waste and ineffciency and
modernze USF and iCC to bring the benefits of broadband to all
Americans. We can't afford to delay.
* * * * *
In addition to the workshops, we of course encourage pares to file
comments in response to the Notice of Proposed Rulemaking
(NPRM). As a reminder, the first comments on certain issues are
due on April 1, and the last reply comments are due on May 23.
Whle the NPRM included many reform ideas, there may be others
that merit consideration as well. We remain open to considering
all ideas put forth in the workshops and comments.
Once the record is complete in late May, we look forward to
moving to an Order within a few months-it's going to be a busy
spring and sumer.
It is likely that the FCC's unversal service reform proceeding will result in changes to
the USF system prior to the AT&T/T-Mobile's merger being approved. Ths means that it is
highy unlikely that the FCC would need to impose a universal service phase-down merger
condition because the paries would already be under such obligation.
The Protesters' dire predictions about FCC actions are unsupported for other reasons as
welL. First, the Protesters misconstre the 2008 proceedings, in which the FCC accepted
voluntary commitments to phase out high-cost support. T-Mobile has stated that after AT&T's
stock purchase of its parent company is complete, T -Mobile wil remain the legal entity with
25 See Connect America Fund Notice of Proposed Rulemaking, Separate Statement of Chairan Genachowski,
Connect America Fund, we Docket No. 10-90.
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ETC designation in Idaho and retain the responsibilities that accompany that status.26 Under the
Telecommunications Act, T-Mobile wil be legally obligated to use universal service support
"only for the provision, maintenance, and upgrading of facilities and services for which the
support is intended.,,27 Moreover, even ifT-Mobile attempted to relinquish ETC status, that
decision would be subject to the review and approval of the Commission.28
The remaining arguents that the Protesters raise also faiL.
VI. The Protesters' references to concerns in Texas are misleading and
irrelevant.
The Protesters' repeated reliance on the concerns raised by the Texas PUC staff is as
misleading as it is self-serving. The Protesters intentionally omit the importt fact that the
Administrative Law Judge ("ALJ") and the Public Utility Commission of Texas ("Texas PUC")
rejected arguents to abate the proceeding because of the anounced AT&T acquisition. In that
case, a CETC, DialToneServices, L.P. ("DTS"), fied a motion with the ALJ to abate T-Mobile's
ETC proceeding due to the anounced AT&T/T-Mobile acquisition. The ALJ denied DTS'
motion, and rejected DTS' s attempt to delay the proceedings in that case, just as Alled's
attempt to delay this Commission's proceedings should be rejected. DTS subsequently appealed
the ALJ's bench ruling to the Texas PUC. The PUC considered and denied DTS' appeal.29 The
record in the Texas proceeding shows that neither the ALJ nor the Texas PUC have been
persuaded by DTS' s concerns to abate the proceeding.
26 See Staff Comments, at 3.
27 See 47 U.S.C. § 254(e) ("A carier that receives such support shall use that support only for the provision,
maintenance, and upgrading of facilties and services for which the support is intended.").
28 See, e.g., Final Order No. 30698 in case number VCI-T-04-01, approving VCI Company's relinquishing of ETC
designation, served December 9,2008.29 See Order Denying Appeal of ALJ's March 22,2011 Bench Order, , Texas PUC Docket No. 38387, SOAH
Docket No. 473-10-5443, Texas PUC Docket No. 38388, SOAH Docket No. 473-10-5444 (fied May 3,2011).
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The speculative underpinnngs of the Protesters' arguments is paricularly apparent in
their attempt to raise doubts about T-Mobile's commitment and ability to expand into rual areas
ofIdaho, based on the Texas proceeding. The Protesters concede that several state commissions
have approved T-Mobile's ETC applications.3o Concerns raised about T-Mobile's build plan in
Texas are entirely irrelevant to this Commission's review ofT -Mobile's ETC designation request
for Idaho. Staff has already thoroughly reviewed T-Mobile's Idaho network improvement plan,
and found it to be reasonable and in the public interest. Once again, the Protesters offer
speculation, not information, and certainly offer no information that was unavailable to this
Commission's Staff relating to T-Mobile's plans in Idaho.
VII. The Protesters' attacks on T -Mobile's existing rural coverage and possible
overlap with AT&T's coverage are not only unsupported, but irrelevant and
should be rejected.
First, the Protesters fault T-Mobile for not having ubiquitous coverage throughout the
state.31 In fact, T-Mobile does not seek ETC designation thoughout the state or even in every
rual area of the state. The Protesters do not provide data sufficient to assess their claims about
lack of coverage, paricularly in comparison to the coverage supplied by Alled, CTC and
Syringa in their ETC areas. But lack of coverage is not a "red flag"; it is instead a non-issue.
The FCC has recognized that a carer seeking to enter the universal service market is not
expected to have coverage or even provide service prior to ETC designation:32
14. Prohibiting the Provision of Telecommunications Service.
We find that an interpretation of section 214( e) requiring cariers
to provide the supported services throughout the service area prior
to designation as an ETC has the effect of prohibiting the ability of
30 T-Mobile was designated as an ETC in Florida, Kentucky and Washington in 2010, and in Hawaii in 2011.
31 See Comments, at 9 ("Of the four major wireless cariers, T-Mobile may have the least expansive coverage in
Idaho's rual areas.") (emphasis added). Assuming this is tre, at most it shows that among all cariers delivering
CMRS in Idaho, T-Mobile has the fourh most extensive rual coverage.32 South Dakota Preemption Order, CC Docket 96-45, Order 00-248 at'r'r 14-15, available at
htt://transition.fcc.gov /Bureaus/Common_ Carrier/Orders/2000/fcc00248. txt.
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prospective entrants from providing telecommuncations service.
A new entrant faces a substatial barer to entr if the incumbent
local exchange carier (LEC) is receiving universal service support
that is not available to the new entrant for serving customers in
high-cost areas. We believe that requiring a prospective new
entrant to provide service throughout a service area before
receiving ETC status has the effect of prohibiting competitive
entr in those areas where universal service support is essential to
the provision of affordable telecommuncations service and is
available to the incumbent LEC. Such a requirement would
deprive consumers in high-cost areas of the benefits of competition
by insulating the incumbent LEC from competition.
15. No competitor would ever reasonably be expected to enter a
high-cost market and compete against an incumbent carier that is
receiving support without first knowing whether it is also eligible
to receive such support. We believe that it is uneasonable to
expect an unsupported carer to enter a high-cost market and
provide a service that its competitor already provides at a
substatially supported price. Moreover, a new entrant canot
reasonably be expected to be able to make the substatial financial
investment required to provide the supported services in high-cost
areas without some assurance that it will be eligible for federal
universal service support. In fact, the carer may be unable to
secure financing or finalize business plans due to uncertainty
surounding its designation as an ETC.
A carier entering the universal service market canot be expected to have coverage
throughout the ETC service area prior to designation; as the FCC recognizes, the point of high-
cost universal service fuding is to provide a mechanism for cariers to extend facilties in rual
areas that can benefit from investment of USF fuds.
The Protesters also claim, without any support, that T-Mobile's build-out in rual areas
has a high degree of overlap with existing AT&T cell sites.33 The Protesters imply that this
potential overlap raises questions about whether USF funds, for futue build-out, will be used to
build redundant facilities. These claims ignore the fact that Commission Staff has thoroughly
reviewed T-Mobile's build plan, found that it is reasonable and in the public interest, and has
33 Comments, at 5.
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recommended ETC designation for T-Mobile. Staffs findings and recommendations, unike the
Protesters' specious claims, are grounded in experience and facts, not speculation.
Second, the Protesters ignore that T-Mobile's build plans will be subject to anual
Commission review and approval though the anua recertification process. There is simply no
reason to conclude that the Commission will fail to ensure that USF support is spent in ways that
benefit rual Idaho consumers and that any redundancy will be avoided.
VIII. Comments by Mr. Stephenson on broadband funding are consistent with T-
Mobile's commitment to spend USF dollars building out facilties for
narrowband service, as required by federal law.
Finally, the Protesters cite comments made in recent Congressional hearings by Randall
Stephenson, AT&T's CEO, concernng fuding of broadband build-out. Those comments
concerned AT&T's willingness to bring broadband capabilities to rual communties (and
others) without using USF fuding. Specifically, Mr. Stephenson provided the following
response to a question from Senator Kohl:
Senator Kohl: "Mr. Stephenson, would you accept as a condition
of the merger a prohibition on AT&T from using any Universal
Service Fund money for its rual broadband build out?
Stephenson: "For ths LTE build out? Yes sir.,,34
The Protesters present Mr. Kohl's words as if they were Mr. Stephenson's own.35
Notwthstanding that error, Mr. Stephenson's acceptance of a prohibition on AT&T using
Universal Service Fund money for its L TE rual broadband build out is inapposite to the issue
before the Commission, namely T-Mobile's commitments to use Universal Service Funds for
rual narrowband build out as envisioned under the Telecommunications Act. 47 U.S.C. §
34 Senate Judiciar Hearing on May 11, 2011, available at
htt://www.senate.gov/fplayers/CommPlayer/commFlashPlayer.cfm?fn=judiciary051111&st=xxx (at approximately
143:30).35 Comments, at 7.
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214(e)(I)(A) requires ETCs to offer nine specific narrowband services that are supported by
Federal unversal service support mechanisms under 47 U.S.C. 254(c)(1). These services are
defined in 47 C.F.R. § 54.101 as:
(1) Voice grade access to the public switched network;
(2) Local usage;
(3) Dual tone multi-frequency signaling or its fuctional equivalent;
(4) Single-pary service or its fuctional equivalent;
(5) Access to emergency services;
(6) Access to operator services;
(7) Access to interexchange service;
(8) Access to directory assistance; and
(9) Toll limtation for quaifying low-income consumers.36
Although the FCC is considering futue fuding for broadband in connection with its
National Broadband Plan and the Connect America Fund, broadband services are curently not
supported by the Universal Service Fund High Cost mechansm.37 The fact that the 4G L TE
build out that AT&T is in the process of deploying, under the curent legal framework, will not
be fuded by the USF does not diminish the need for expansion of the nine services that the
curent USF supports in rual areas, nor does it diminish the need for USF support to promote
that expansion. Expanded availability of the nine USF -supported services to rual Idao canot
wait-as the Protesters propose-until after the merger.
ix. Conclusion
The Protesters provide no reason to revisit the Commission's decision to process its ETC
application under Modified Procedure. Their comments present no new information, only
unfounded speculation. That speculation is driven by their interests in precluding furter
competition in the universal service market. It is further fueled by mischaracterizations of FCC
3647 C.F.R. § 54.101.
37 See Connect America Fund, WC Docket No. 10-90, A National Broadband Plan/or Our
Future, GN Docket No. 09-5 i.
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practices, the proceeding in Texas, and the statements of Mr. Stephenson. It rests on complaints
concernng "secret build plans" that were in fact thoroughly reviewed by Staf. Having reviewed
all the relevant information, Staffhas stated that "T-Mobile's Application demonstrates that ETC
designation is in the public interest," and "should be approved."38 As the foregoing shows, while
the Protesters' pecuniar interests might benefit from delay or denial of that approval, they have
failed to demonstrate that abandoning Modified Procedure in this case would serve the public
interest.
For these reasons, the Commission should continue to process T -Mobile's application
under Modified Procedure, and approve T-Mobile's application. Expeditious approval ofT-
Mobile's application, which has been pending for six months, is in the public interest and will
bring additional benefits for Idaho rual consumers.
DATED: June 23, 2011.
T-Mobile West Corporation
/By:
MarK . Trinchero, OSB #88322
DA IS WRGHT TREMAINE, LLP
1300 SW Fifth Avenue, Suite 2300
Portland, Oregon 97201
marktrinchero(Ðdwt.com
[phone]
Teri Ohta
Senior Corporate Counsel
T -Mobile USA, Inc.
12920 SE 38th Street
Bellevue, Washington 98006
Teri.Ohta(Ðt-mobile.com
[phone]
David Daggett, ISB #5936
DAVIS WRGHT TREMAINE, LLP
1201 Thrd Avenue, Suite 2200
Seattle, WA 98101-3045
daviddaggett(Ðdwt.com
[phone]
38 Staff Comments, at 4 and 9.
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CERTIFICATE OF SERVICE
I hereby certify that, on June 23, 2011, I caused to be served, via the methodes) indicated
below, tre and correct copies ofT-MOBILE WEST CORPORATION'S RESPONSE TO
COMMENTS OF ALLIED WIRELESS COMMUICATIONS CORPORATION, IDAHO
TELECOM ALLIANCE, CTC TELECOM, INC., SYRGA WIRELESS, LLC, AND RURAL
TELEPHONE COMPANY'S AND PROTEST TO USE OF MODIFIED PROCEDURE AND
REQUEST FOR HEARIG 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
jjewell(Ðpuc.state.id. us
Cynthia 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(Ðgivenspursley.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
joe(Ðmcdevitt-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(Ðfcclaw.com Email (Xl
ine LLP
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