HomeMy WebLinkAbout20210825Final_Order_No_35126.pdf
ORDER NO. 35126 1
Office of the Secretary
Service Date
August 25, 2021
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
On March 15, 2021, Torch Wireless (“Company”) applied for designation as an
Eligible Telecommunications Carrier (“ETC”) to provide Lifeline service throughout Idaho. The
Company also seeks authorization to participate in and receive reimbursement from the Idaho
Telecommunications Service Assistance Program.
On April 14, 2021, the Commission issued a Notice of Application and Modified
Procedure, setting a May 3, 2021, comment deadline and a May 10, 2021, reply deadline. Order
No. 35001. Commission Staff filed comments; no other comments were received.
On June 22, 2021, the Commission deliberated on the fully submitted case. During the
deliberation, the Commission noted that the Company had not provided written notice of the
Application to affected Tribal authorities. The Commission order establishing ETC application
requirements, Order No. 29841, states that an “ETC applicant seeking ETC designation for any
part of tribal lands shall provide a copy of its application to the affected tribal government or tribal
regulatory authority, as applicable, at the time it files its application with the Commission.” The
Commission declined to issue a final order until the record reflected that the affected Tribal
authorities had received notice of the Company’s Application and been given an opportunity to
comment on it. On June 25, 2021, the Commission issued Order No. 35090 directing the Company
to provide the affected Tribal authorities notice and setting a new comment deadline for July 15,
2021, for interested persons to submit comments on the Company’s Application. No additional
comments were filed.
Having reviewed the record, the Commission grants the Company’s Application as set
forth in our findings below.
BACKGROUND
Under the federal Telecommunications Act of 1996 (“Federal Act”), a carrier
designated as an ETC is eligible to receive federal support from the federal Universal Service Fund
IN THE MATTER OF TORCH WIRELESS’S
APPLICATION FOR DESIGNATION AS AN
ELIGIBLE TELECOMMUNICATIONS
CARRIER IN IDAHO
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CASE NO. TOR-T-21-01
ORDER NO. 35126
ORDER NO. 35126 2
(“USF”).1 47 U.S.C. § 214(e). This Commission has the authority, under the Federal Act, to grant
ETC designations within Idaho. 47 U.S.C. § 214(e)(2). Authority for the Commission to designate
ETC status is also provided in Idaho law—the Idaho Telecommunications Act of 1988 (“Idaho
Act”)—and expounded upon in prior Commission orders. See Idaho Code §§ 62-610D(1), 62-
615(1); Order No. 29841. Under this authority, this Commission has granted ETC designations to
numerous carriers in Idaho, including wireless carriers. See e.g., Order Nos. 32586, 32645, and
34163.
To qualify as an ETC, an applicant must satisfy several requirements established in
federal and state law. 47 U.S.C. § 214(e); Order No. 29841. The Federal Act requires the applicant
to be a “common carrier,” offering services supported under Section 254(c) of the Federal Act
“using its own facilities or a combination of its own facilities and resale of another carrier’s
services,” unless otherwise granted Federal Communications Commission (“FCC”) forbearance.
47 U.S.C. §§ 153(11), 214(e)(1)(A), 160(a)(3) (FCC has regulatory flexibility to forbear
application where consistent with public interest). The Federal Act also requires the applicant
“advertise the availability of such services and the charges therefor using media of general
distribution.” 47 U.S.C. § 214(e)(1)(B).
Under the Federal Act, state commissions are granted the authority to determine
whether ETC designation is “consistent with the public interest, convenience, and necessity.” 47
U.S.C. § 214(e)(2). In evaluating this public interest element, this Commission has generally
considered two factors. See Order Nos. 33002 at 2-3; and 33226 at 3. First, the Commission
evaluates whether the carrier contributes to state assistance programs such as ITSAP and the Idaho
Telecommunications Relay Services (“TRS”) program. Id.; Idaho Code § 61-1301. Second, the
Commission considers if the designation is sought for only part of a rural telephone company’s
study area, thus leaving some (perhaps less profitable) customers without service. See Order Nos.
1 The Federal Communications Commission established the federal USF with the intent to make adequate, efficient
communications available nationwide, at reasonable charges. In the Matter of Lifeline and Link Up Reform and
Modernization, Lifeline and Link Up, Federal-State Joint Board on Universal Service, Advancing Broadband
Availability Through Digital Literacy Training (“Lifeline and Link Up Reform Order”) 27 F.C.C.R. 6656, at 6660-62
(Feb. 6, 2012); 47 U.S.C. § 254(b). Lifeline is a program supported by the USF that provides monthly discounts to
eligible low-income subscribers to maintain access to communications networks. Lifeline and Link Up Reform Order,
27 F.C.C.R. 6656 at 6662-63. Idaho has an analogous state USF program, established in Idaho Code §§ 62-610 and
62-610A-610F, and a Lifeline program known as the Idaho Telecommunications Service Assistance Program
(“ITSAP”).
ORDER NO. 35126 3
33002 at 2-3; and 33226 at 3. Such practice, known as “cream skimming,” has been determined
by this Commission to be contrary to the public interest. Id.
Federal regulations include these additional requirements, which the Commission has
adopted by reference, in evaluating applications for ETC designation: (1) compliance with service
requirements applicable to support received; (2) submission of a plan for proposed improvements
or upgrades to the network (where applicable); (3) demonstrated ability to remain functional in
emergencies without an external power source; (4) demonstrated willingness to satisfy consumer
protection and service quality standards; (5) financial and technical capability to provide Lifeline
service; and (6) notice to affected Tribes where designation is sought for any part of Tribal lands.
See 47 C.F.R. § 54.202; No. 29841 at 5 and 16.
For applicants seeking Lifeline-only ETCs, the FCC has waived the requirement to
submit a network improvement and upgrade plan, noting that such ETCs do not receive funds to
improve or extend their networks. Lifeline and Link Up Reform Order, 27 F.C.C.R. 6656, ¶ 386.
This Commission—which requires a two-year network improvement plan and progress report
(Order No. 29841 at 18) where applicable—has also waived the requirement where a Lifeline-only
ETC is requested. Order No. 33002 at 3.
THE APPLICATION
The Company is a Wyoming corporation authorized to do business in Idaho as a foreign
corporation. The Company seeks ETC in the entire state of Idaho (including Tribal Lands) for
local exchange services in the designated service area, for the purpose of receiving federal
universal service support. The Company is seeking only low-income support to provide Lifeline
services to qualifying consumers in the state of Idaho. The Company is not seeking nor requesting
high-cost support. Torch requests that its designation as an ETC include the authority to participate
and receive reimbursement from ITSAP. The Company asserted it meets all federal and state
requirements for designation as an ETC and argued that designating the Company as an ETC is in
the public interest.
STAFF COMMENTS
Staff recommended approval of the Company’s Application. Staff’s analysis included
a review of the Company’s compliance with the federal Telecommunications Act of 1996 and FCC
regulations and orders. Staff also verified whether the Company meets the ETC eligibility and
reporting requirements established by the Commission in Order No. 29841. Staff concluded “the
ORDER NO. 35126 4
Application demonstrates the Company’s commitment to fulfill the obligations of an ETC in
Idaho.” Staff Comments at 4.
When analyzing whether a common carrier’s ETC application is in the public interest,
Staff usually focuses on two considerations: whether the company will contribute to Idaho
telecommunications funds, and whether the company’s application raises “cream-skimming”
concerns.2 See Case No. VCS-T-18-01. Regarding the first consideration, Staff noted the
Company confirmed it will comply with the reporting and contribution requirements outlined in
Order No. 29841. Regarding the second consideration, Staff noted the Company requests ETC
designation statewide; therefore, no cream skimming analysis is required.” Staff Comments at 3.
COMMISSION FINDINGS AND DECISION
The Commission has authority to grant ETC designation to a telecommunications
carrier under federal and state law. 47 U.S.C. § 214(e); and Idaho Code §§ 62-610D, 62-615(1).
The Commission has reviewed and considered the record, including the Company’s Application
and Staff Comments. We now make the following findings.
A. Common Carrier, Own-Facilities, and Advertising
We first address requirements listed in § 214(e)(1) of the Federal Act. That provision
requires an applicant to be a “common carrier” by offering the supported services “using a
combination of its own facilities and resale”. See Application at 7. Therefore, we find the
Company will utilize its own facilities as a facilities-based provider. On the record before us, we
find the Company is also a “common carrier.” See 47 U.S.C. § 153(11).
An applicant seeking ETC designation must also “advertise the availability of such
services and the charges therefor using media of general distribution.” 47 U.S.C. § 214(e)(1)(B).
Based on the record and the Company’s assurances, we find this requirement to also be satisfied.
See Application at 8.
B. Public Interest and Related ETC Designation Requirements
Under the Federal Act, state commissions shall determine whether granting the
requested ETC designation is “consistent with the public interest, convenience, and necessity.” 47
U.S.C. § 214(e)(2).
2 “Cream skimming” occurs when a telecommunications carrier seeks ETC designation for only part of a rural
telephone company’s study area, leaving less profitable customers without service.
ORDER NO. 35126 5
First, the Company committed to providing Idaho consumers, especially low-income
consumers, with low prices and high-quality services. Id. at 10. The Company also committed to
offering Lifeline services in its service area. Id. at 11; see also 47 C.F.R. § 54.101(d). We find
that the Company’s offering of these services promotes the public interest because these services
will provide competition and choice for consumers. Id. This deployment also furthers this
Commission and the FCC’s goals of expanding the reach of digital connectivity to promote
economic growth in rural areas. In pursuit of deployment, the Company has committed to
satisfying all applicable state and federal requirements related to consumer protection and service
quality standards. Id. at 10. We further find it is in the public interest for the Company to offer
Lifeline services in its service area.
We also consider whether the Company would contribute to the appropriate Idaho
funds. See Order Nos. 33002 at 2-3, 33226 at 3. Staff confirmed that the Company will participate
in the appropriate Idaho programs and comply with the Commission’s annual reporting
requirements. Staff Comments at 3. We find that the Company’s commitment to participating in
the appropriate Idaho programs advances the public interest.
Next, we consider whether the Company is engaged in “cream skimming,” which we
have found to be contrary to the public interest. Order Nos. 33002 at 2-3, 33226 at 3. Because the
Company requested ETC designation for the entire state, no cream-skimming analysis is required.
We therefore find that granting the Company ETC designation in Idaho satisfies the
public interest requirements.
C. Remaining Requirements
Finally, we address the six remaining requirements from federal regulations and Order
No. 29841. See 47 C.F.R. § 54.202.
(1) Service Requirements for Support Received. We find the Company has sufficiently
committed to meeting these requirements. Application at 6-11.
(2) Plan for Proposed Improvements or Upgrades to the Network. The FCC waived the
requirement for a winning bidder to file a five-year plan as part of the ETC designation process,
citing its heightened oversight of auction winners. WCB Reminds Connect Am. Fund Phase II
Auction Applicants of the Process for Obtaining A Fed. Designation As an Eligible
Telecommunications Carrier, 33 FCC Rcd. 6696 (2018). Considering the FCC’s heightened
ORDER NO. 35126 6
oversight, we waive in this proceeding our requirement that the Company’s ETC Application
include a two-year network improvement plan. See Order No. 29841 at 8.
(3) Ability to Remain Functional in Emergencies. We find the Company has
demonstrated sufficient compliance with this requirement. Application at 9.
(4) Willingness to Satisfy Consumer Protection and Service Quality Standards. We are
satisfied with the Company’s assurances as to this requirement. Id. at 8.
(5) Financial and Technical Capability. Based on the Company’s assurances and
description of its financial and technical qualifications, and how it interacts and partners with its
parent company, we also find this requirement to be satisfied. Id. at 9.
(6) Notice to Affected Tribes. To obtain ETC designation by this Commission we find
the Company has sufficiently notified and engaged Tribal authorities according to 47 C.F.R. §
54.202, and Order No. 29841.
Following the issuance of Order No. 35090, the Company provided Staff with copies
of the correspondence, which were all dated July 9, 2021, sent to Tribal authorities in Idaho of the
Company’s Application.3 We have reviewed this correspondence and conclude that the Company
has satisfied the federal and state requirements for an ETC designation. We therefore designate
the Company an ETC for the entire state of Idaho. Likewise, we designate the Company a Lifeline-
only ETC for the service area in which the Company will not receive high-cost support.4 As this
case was processed it came to our attention that the original Appendix setting forth the
requirements to qualify to be granted ETC status in Idaho were outdated. As a result, minor
changes were made.
When this Commission originally established ETC application requirements we
imposed the responsibility to provide notice to the affected Tribes not only on the company seeking
ETC status but also on ourselves. See Order No. 29841. We find this requirement redundant and
unnecessary. It is reasonable for the company requesting ETC status to notify the Tribes of such
a request. The Commission’s responsibility is to verify that notice is provided, as is the case here.
3 The Company provided notice of its Application to the Coeur D’Alene, Kootenai, Nez Perce and Shoshone Bannock
Tribes in Idaho.
4 Attached to this Order is the Appendix setting forth updated requirements for ETC Designation, Reporting and
Certification.
ORDER NO. 35126 7
O R D E R
IT IS HEREBY ORDERED that the Company’s Application for a) designation as an
ETC in the state of Idaho, b) designation as a Lifeline-only ETC for the service area in which the
Company will not receive high-cost support, and c) authorization to participate and receive
reimbursement from ITSAP as appropriate is granted.
THIS IS A FINAL ORDER. Any person interested in this Order may petition for
reconsideration within twenty-one (21) days of the service date of this Order. Within seven (7)
days after any person has petitioned for reconsideration, any other person may cross-petition for
reconsideration. See Idaho Code § 61-626.
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this 25th day
of August 2021.
PAUL KJELLANDER, PRESIDENT
KRISTINE RAPER, COMMISSIONER
ERIC ANDERSON, COMMISSIONER
ATTEST:
Jan Noriyuki
Commission Secretary
I:\Legal\TELEPHONE\TOR-T-21-01\Orders\TORT2101_final_jh.docx
APPENDIX
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APPENDIX
Requirements for Eligible Telecommunications Carrier (ETC)
Designation, Reporting, and Certification.
A. STATUTORY DESIGNATION REQUIREMENTS
All ETC applicants must follow the federal statutory requirements for ETC
designation. See 47 U.S.C. § 214(e)(l).
1. Common Carrier
The ETC applicant must be a "common carrier" as defined by 47 U.S.C. § 153(10).
2. Provide the Universal Services
The ETC applicant must demonstrate that it is capable of providing and will
continuously provide throughout its proposed service area the universal services set forth in 47
C.F.R. § 54.101(a), either by using its own facilities or a combination of its own facilities and
resale of another carrier's services. See 47 U.S.C. § 214(e)(l)(A). These services include:
(a) Voice grade access to the public switched network;
(b) Local calling;
(c) Touch tone signaling or its functional equivalent;
(d) Single-party service or its functional equivalent;
(e) Access to 911 emergency services where available;
(f) Access to operator services;
(g) Access to long-distance service;
(h) Access to directory assistance; and
(i) Toll limitation service.
See 47 C.F.R. § 54.101(a).
3. Advertising
The ETC applicant must demonstrate that it will advertise the availability of its
universal service offering and the charges therefore using media of general distribution. See 47
U.S.C. § 214(e)(l)(B).
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CASE NO. TOR-T-21-01
4. Public Interest
The ETC applicant must demonstrate that ETC designation is consistent with the
public interest, convenience, and necessity; and, in the case of an area served by a rural telephone
company, demonstrate that the public interest will be met by an additional designation.
5. Tribal Notification
An ETC applicant seeking ETC designation for any part of tribal lands shall provide
a copy of its application to the affected tribal government or tribal regulatory authority, as
applicable, at the time it files its application with the Commission. Evidence of such notification
shall be provided to the Commission.
B. ADDITIONAL ELIGIBILITY REQUIREMENTS
All ETC applicants in Idaho must also satisfy the following additional requirements
for ETC designation in Idaho. All ETCs previously designated by this Commission pursuant to 47
U.S.C. § 214(e)(2) must provide this information by September 1, 2006.
1. The Commitment and Ability to Provide Supported Services
The ETC applicant must certify that it will: (a) provide service on a timely basis to
requesting customers within the applicant's service area where the applicant's network already
passes the potential customer's premises; and (b) provide service within a reasonable period of
time, if the potential customer is within the applicant's licensed service area but outside its existing
network coverage, if service can be provided at reasonable cost by (i) modifying or replacing the
requesting customer's equipment; (ii) deploying roof-mounted antenna or other equipment; (iii)
adjusting the nearest cell tower; (iv) adjusting network or customer facilities; (v) reselling services
from another carrier's facilities to provide service; or (vi) employing, leasing or constructing an
additional cell site, cell extender, repeater, or other similar equipment.
The ETC applicant must also submit a two-year network improvement plan that
describes with specificity proposed improvement or upgrades to the applicant's network on a wire
center-by-wire center basis throughout its proposed designated service area. Each applicant must
also demonstrate how signal quality, coverage or capacity will improve due to the receipt of high-
cost support; the projected start date and completion date for each improvement and the
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CASE NO. TOR-T-21-01
estimated amount of investment for each project that is funded by high-cost support; the specific
geographic areas where the improvements will be made; and the estimated population that will
be served as a result of the improvements. If an applicant believes that service improvements in
a particular wire center are not needed, it must explain its basis for this determination and
demonstrate how funding will otherwise be used to further the provision of supported services in
that area.
2. The Ability to Remain Functional in Emergencies
The ETC applicant must demonstrate that it has a reasonable amount of back-up power
to ensure functionality without an external power source, is able to re-route traffic around damaged
facilities, and is capable of managing traffic spikes resulting from emergency situations.
3. A Commitment to Consumer Protection and Service
The ETC applicant must certify that it will comply with all applicable service quality
standards and consumer protection rules. In addition, all wireless carriers seeking ETC designation
must agree to comply with the Cellular Telecommunications and Internet Association's Consumer
Code for Wireless Service ("CTIA Code").
4. Description of the Local Usage Plans
The ETC applicant must provide a description of its local usage plans and a description
of the local usage plan(s) of the incumbent local exchange carrier (ILEC).
C. REPORTING REQUIREMENTS
Beginning on September 1, 2006, and every year thereafter, all carriers requesting
high-cost support must submit an annual report to the Commission.
1. Two-Year Network Improvement Plan and Progress Report
The annual report must include a progress report demonstrating what progress has been
made in the last year toward goals outlined in the most recent two-year network improvement plan.
The progress report must include maps detailing the ETC's progress towards meeting its plan
targets, an explanation of how much universal service support was received and how it was used
to improve signal quality, coverage, or capacity, and an explanation regarding any network
improvement targets that have not been fulfilled. This information should be submitted at the wire
center level. The annual report must also include a new two-year network
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CASE NO. TOR-T-21-01
improvement plan indicating plans for future investment. The two-year network improvement
plan must provide the same information required for ETC designation. See, infra, Appendix B.1.
2. Outages
The annual report must include detailed information on any outage, as that term is
defined in 47 C.F.R. § 4.5, of at least thirty (30) minutes in duration for each service area in which
an ETC is designated for any facilities it owns, operates, leases or otherwise utilizes that
potentially affect (a) at least ten percent of the end users served in a designated service area; or
(b) a 911 special facility, as defined in 47 C.F.R. § 4.5(e). Specifically, the annual report must
include information detailing: (a) the date and time of onset of the outage; (b) a brief description
of the outage and its resolution; (c) the particular services affected; (d) the geographic areas
affected by the outage; (e) the steps taken to prevent a similar situation in the future; and (f) the
number of customers affected.
3. Unfulfilled Service Requests
The annual report must include the number of requests for service from potential
customers within the ETC's service areas that were unfulfilled in the previous year. The carrier
shall also detail how it attempted to provide service to those potential customers.
4. Customer Complaints
The annual report must include the number of complaints per 1,000 handsets or lines.
5. Service Quality and Consumer Protection Certification
The annual report must include certification that the ETC 1s complying with
applicable service quality standards and consumer protection rules.
6. Descriptions of the Applicant's local usage plan and that of the ILEC.
The annual report must include a description of the ETC's local usage plan(s) and a
description of the ILEC's local usage plan(s).
D. CERTIFICATION REQUIREMENTS
In order to be eligible for federal USF funding in any given year, the carrier must
comply with the annual reporting requirements above. In addition, the carrier must certify to the
Commission that all federal high-cost support provided to the carrier for service areas in Idaho
will be used only for the provision, maintenance, and upgrading of facilities and services for which
the support was intended.