28184.doc

BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION

IN THE MATTER OF THE APPLICATION OF U S WEST COMMUNICATIONS, INC. FOR DEREGULATION OF BASIC LOCAL EXCHANGE RATES IN ITS BURLEY, IDAHO EXCHANGE. )
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CASE NO. USW-T-99-15

ORDER NO. 28184

The Commission convened a prehearing conference in this case on October 12, 1999, pursuant to a Notice issued by the Commission on September 17, 1999. On September 20, 1999, a Motion to Dismiss U S WEST’s Application was filed by GST Telecom Idaho, Inc. and Electric Lightwave, Inc. (GST/ELI). The Commission subsequently issued on October 5, 1999, a Notice of Hearing for Oral Argument on GST/ELI’s Motion to Dismiss, scheduling oral argument to take place during the prehearing conference. Following oral argument on the Motion, the Commission issued bench rulings denying the Motion, and also clarifying for the parties the local exchange calling area relevant to this case. This Order codifies the bench rulings made by the Commission during the prehearing conference, and also modifies the procedural schedule previously adopted by the Commission.
In their Motion to Dismiss, GST/ELI argued that relevant Idaho statutes required U S WEST “to present substantive and meaningful evidence of effective competition,” and that the proof of competition must be throughout a local exchange calling area. GST/ELI Motion, p. 2. GST/ELI argued that, because the Commission has approved extended area service (EAS) in Cassia County, the local exchange calling area “would include all telephone exchanges owned by U S WEST, PMT [Project Mutual Telephone] and Albion Telephone Company providing service in Cassia County and the communities of Burley, Rupert, Heyburn, Oakley, Raft River, Malta, Albion and Elba.” GST/ELI Motion p. 7.
In its reply to the Motion, U S WEST argued that “GST/ELI do not seek dismissal of an allegedly defective application, rather they seek summary determination of factual issues which underlie the ultimate findings of the Commission (i.e., the question whether U S WEST will be granted the relief it has requested).” U S WEST Response, p. 5. U S WEST maintained that GST/ELI’s Motion, “rather than arguing that U S WEST’s Application is somehow deficient as a matter of law, merely demonstrates GST/ELI’s willingness to challenge U S WEST on the factual basis of its Application. The proper proceeding in which to resolve that challenge is a hearing before the Commission on the merits.” U S WEST Response p. 9. U S WEST at oral argument also disputed application of the expansive local exchange calling area advocated by GST/ELI. U S WEST maintained that the relevant local calling area is its own exchange in Burley, including the Declo wire center.
At the conclusion of the oral argument, the Commission issued a bench ruling denying GST/ELI’s Motion. Although the Commission may dismiss defective, insufficient or late pleadings (see IPUC Rule of Procedure 65), the pleading filed by U S WEST in this case is sufficient to entitle it to present its case in a hearing to the Commission. However, it also became clear during oral argument that U S WEST has additional information that should be included as part of its Application. Accordingly, the Commission directed the parties to establish a date for a supplemental filing by U S WEST prior to the date for the filing of testimony by Staff and Intervenors. The parties agreed that U S WEST would supplement its Application with additional prefiled testimony and exhibits by October 26, 1999. The parties also agreed to move the prefiling date for Staff and Intervenor testimony and exhibits to November 24, 1999.
During the prehearing conference, the Commission also issued a bench ruling clarifying the relevant local exchange calling area. Idaho Code § 62-622(3) requires an incumbent telephone company to show that “effective competition exists for basic local exchange service throughout the local exchange calling area.” Local exchange calling area is defined in Idaho Code § 62-603(7) as “a geographic area encompassing one or more local communities as described in maps, tariffs, rate schedules, price lists, or other descriptive material filed with the Commission by a telephone corporation, within which area basic local exchange rates rather than message telecommunication service rates apply.” We believe the Legislature intended by that definition and its application in Section 62-622(3) that an incumbent local exchange provider is required to provide evidence of effective competition throughout its local exchange calling area, not a calling area that may result from extended area service approved by the Commission and which may involve more than one incumbent local exchange provider.

O R D E R
IT IS HEREBY ORDERED that the Motion to Dismiss filed by GST Telecom Idaho, Inc. and Electric Lightwave, Inc. is denied.
IT IS FURTHER ORDERED that the procedural schedule previously adopted in this case is modified to provide for a supplemental filing of testimony and exhibits by U S WEST on October 26, 1999. The prefiling date for testimony and exhibits by Intervenor and Staff is changed to November 24, 1999.
THIS IS AN INTERLOCUTORY ORDER. Any person interested in this Order may file a petition for review within twenty-one (21) days of the service date of this Order with regard to any matter decided in this Order. A petition to review may request that the Commission: (1) rescind, clarify, alter, amend; (2) stay; or (3) finalize this Interlocutory Order. After any person has petitioned for review, any other person may file a cross-petition within seven (7) days. See Rules 321, 322, 323.04, 324, 325 (IDAPA 31.01.01.321 –325.)
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this
day of October 1999.

DENNIS S. HANSEN, PRESIDENT

MARSHA H. SMITH, COMMISSIONER

PAUL KJELLANDER, COMMISSIONER

ATTEST:

Myrna J. Walters
Commission Secretary

vld/O:USW-T-99-15_ws2

ORDER NO. 28184 1

Office of the Secretary
Service Date
October 19, 1999