20050428Response to motion to dismiss.pdf

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:L, D c=~!McD EVITT & MILLER, LLP
Dean J. (Joe) Miller (ISB #1968)
420 West Bannock Street
O. Box 2564-83701
Boise, Idaho 83702
Phone [phone]
Facsimile [phone]
joe~mcdevitt-miller.com
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BRIGGS AND MORGAN, P.
Philip R. Schenkenberg (MN #260551)
2200 IDS Center
80 South Eighth Street
Minneapolis, Minnesota 55402
Phone [phone]
Facsimile [phone]
ATTORNEYS FOR WWC HOLDING
CO., INC. d/b/a CELLULARONE(ID
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
In the Matter of the Application of WWC )
HOLDING CO., INC. d/b/a CELLULAR- )
ONE(!!) Seeking Designation as an Eligible
Telecommunications Carrier that may receiveFederal Universal Service Support
Case No. WST-05-
WWC HOLDING CO., INC. '
RESPONSE TO MOTION TO
DISMISS
COMES NOW, WWC Holding Co., Inc. d/b/a Cellular-One ("Western Wireless ) and
files this Answer to Idaho Telephone Association s ("ITA") Motion to Dismiss, pursuant to Rule
57 of the IPUC Rules of Procedure, IDAP A 31.01.01.057, in the above-referenced action.
discussed below, new standards for ETC designation contained in the recent Federal
Communications Commission ("FCC") 2005 Report and Order apply only to ETC applications
filed with the FCC after the effective date of the new rules, and new reporting requirements
apply to all federally-designated ETCs beginning in 2006. As a result, the new standards do not
In the Matter of Federal-State Joint Board on Universal Service CC Docket No. 96-
Report and Order, FCC 05-46 (reI. Mar. 17 2005) 2005 Report and Order
WWC RESPONSE TO MOTION TO DISMISS -
apply and cannot be applied to Western Wireless' pending Application. Therefore , the IT A'
Motion to Dismiss should be denied.
ARGUMENT
On February 17, 2005 Western Wireless filed an Application for Designation as an
Eligible Telecommunications Carrier ("ETC") with the Idaho Public Utilities Commission
Commission
).
It is undisputed that, at the time Western Wireless filed its Application
applicants were required to meet the standards set forth in 47 U.C. ~ 214(e)(I)-(2) and 47
R. ~ 54.101 in order to be designated as an ETC in Idaho. ITA Motion, p. 3. In its
Application, Western Wireless demonstrated that it meets the requirements set forth in 47 U.
~ 214(e)(I)-(2) and 47 C.R. ~ 54.101 and, as such, should be designated as an ETC.
On March 17, 2005 , the FCC issued the 2005 Report and Order setting forth new
additional requirements for ETC applications filed with the FCC pursuant to Section 214( e)( 6).
The IT A argues that Western Wireless' Application is insufficient because it does not comply
with the regulatory requirements for ETC applications adopted by the FCC in the 2005 Report
and Order. However, the new requirements set forth in the 2005 Report and Order apply only to
applications filed with the FCC after the effective date of the newly adopted rules. As a result
the ITA's argument is without merit, and the new rules adopted by the FCC do not apply to
Western Wireless' Application.
ST ANDARD OF REVIEW
The ITA moves for the dismissal on the basis that the Application fails to state a claim
upon which relief can be granted. ITA faces a difficult standard - under Idaho law - for a
complaint to be dismissed for failure to state a claim
, "
it must appear beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to relief.
Wackerli v. Martindale 82 Idaho 400 405, 353 P.2d 782, 787 (1960). The objective of the law is
WWC RESPONSE TO MOTION TO DISMISS - 2
to obtain a determination of the merits of a claim, not to have a case dismissed on technicalities.
Id. at 404, 353 P.2d at 786. As a result, the Commission should err on the side of denying this
motion and allow Western Wireless to present its case on the merits. Idaho Commission on
Human Rights v. Campbell 95 Idaho 215, 217, 506 P.2d 112, 114 (1973); Ernst v. Hemenway
and Moser Co.120 Idaho 941 (1991).
II.THE 2005 REPORT AND ORDER ESTABLISHES NEW ETC DESIGNATION
STANDARDS ONLY FOR FEDERAL ETC DESIGNATIONS UNDER U.214~ FILED AFTER THE EFFECTIVE DATE OF THE NEW RULES
The FCC'2005 Report and Order does not change any existing rules or standards for
ETC applications in Idaho.Rather, it establishes ETC designation requirements only for
applications filed with the FCC after the effective date of the newly adopted rules. Accordingly,
the new standards do not apply to applications filed with a state commission and do not apply to
applications that are currently pending.
The FCC's new Rule 47 C.F .R. ~ 54.202 will read:
54.202 Additional requirements for Commission designation of eligible
telecommunications carriers.
(a) On or after the effective date of these rules, in order to be designated an
eligible telecommunications carrier under section 214UillQl, any common carrier
in its application must. . .
The FCC made clear in the 2005 Report and Order that these new standards do not automatically
apply to state proceedings initiated under 47 U.C. ~ 214(e)(2): "In addition, as recommended
by the Joint Board we encourage states that exercise jurisdiction over ETC designations
pursuant to section 214( )(2) of the Act, to adopt these requirements... ,,3 Until a state acts to
2 47 C.F .R. ~ 54.202 (emphasis added).
2005 Report and Order ~ 1.
WWC RESPONSE TO MOTION TO DISMISS - 3
consider and adopt these new standards, they do not apply in that state. As a result, these new
designation requirements do not apply to Western Wireless' pending application.
Moreover, these new requirements would apply at the federal level only to applications
filed "on or after the effective date" of the new rules:
(b) Any common carrier that has been designated under section 214( e)( 6) as
eligible telecommunications carrier or that has submitted its application for
designation under section 214W(Q) before the effective date of these rules must
submit the information required by paragraph (a) of this section no later than
October 1 , 2006, as part of its annual reporting requirements under section
54.209.
The new rules are in accord with the fundamental principal of administrative law that
application must be considered based on the rules in effect when it was filed. Therefore, even if
these rules did apply to state proceedings, they would not apply to Western Wireless' pending
Application.
As a result, the Commission should find that the new FCC standards do not apply to this
Application and do not apply to any application filed before the effective date of the new rules.
III.THE NEW REPORTING STANDARDS APPLY TO FEDERALLY DESIGNATED
ETCS AND DO NOT AUTOMATICALLY APPLY IN IDAHO
As noted above, new FCC Rule 54.202(b) establishes designation standards, and FCC
Rule 54.209 establishes new annual reporting requirements. These new reporting obligations
apply only to ETCs designated by the FCC under Section 214(e)(6), were adopted by the FCC by
rule, and apply to all ETCs under the FCC's jurisdiction. As a result, these new reporting
obligations will apply in Idaho only if the Commission adopts such requirements by adopting a
rule that applies to Idaho ETCs.
4 47 C.R. ~ 54.202(b) (emphasis added).
WWC RESPONSE TO MOTION TO DISMISS - 4
Rule 54.209 on its terms establishes reporting requirements for: "A common carrier
designated under section 214( e)( 6) as an eligible telecommunications carrier." 47 C.F .
~ 54.209. The FCC did not extend these reporting requirements to state-designated ETCs, and
instead encouraged states to adopt their own reporting standards:
Similar to the ETC designation requirements adopted above, the Commission, in
this Report and Order, encourages states to require these reports to be filed by all
ETCs over which they possess jurisdiction.
The FCC also directed that any such reporting requirements should be generally applicable to all
ETCs, and not just imposed on recently-designated competitors:
We do not believe that different ETCs should be subject to different obligations
going forward, because of when they happened to first obtain ETC designation
from the Commission or the state. These are responsibilities associated with
receiving universal service support that apply to all ETCs, regardless of the date
of initial designation.
The Commission would violate this directive and principles of competitive neutrality if it were to
impose these new reporting standards on a single carrier in a designation proceeding. See also
Arasco v. State 138 Idaho 719, 69 P.3d 139 (2003) (rulemaking is required). The Commission
should direct that while these new reporting standards may be imposed in a separate rulemaking
docket, they are not automatically applicable to Western Wireless.
IV.THE "NEW" PUBLIC INTEREST STANDARD IS NOT NEW
IT A argues that the case should not proceed on modified procedure based on a "new
public interest test" contained in Rule 54.202(c). ITA Motion, p. 5. As explained in Western
Wireless' Comments, this new rule codifies the kind of analysis done by many state
commissions, and contemplates factors that are addressed in Western Wireless' Application and
2005 Report and Order ~ 5.
2005 Report and Order ~ 20.
WWC RESPONSE TO MOTION TO DISMISS - 5
Comments. This "new" public interest standard does not require a dismissal of the Application
and does not require the case to go to hearing.
CONCLUSION
Western Wireless respectfully requests that the Commission deny IT A's Motion to
Dismiss. The new rules and standards referenced by ITA do not apply to this docket and cannot
be a basis for denying the Application.
Respectfully submitted
Dated: April 28, 2005 WWC HOLDING CO., INC.
d/b/a Cellular One(!!)
\)J1
.......
McDEVITT & MILLER, LLP
Dean J. (Joe) Miller
420 West Bannock Street
O. Box 2564-83701
Boise, Idaho 83702
Phone [phone]
Facsimile [phone]
BRIGGS AND MORGAN, P.
Philip R. Schenkenberg (MN #260551)
2200 IDS Center
80 South Eighth Street
Minneapolis, Minnesota 55402
Phone [phone]
Facsimile [phone]
COUNSEL FOR APPLICANT
WWC HOLDING CO., INC.
d/b/a CELLULAR ONE(!!)
WWC RESPONSE TO MOTION TO DISMISS - 6
CERTIFICATE OF SERVICE
I certify that the original and seven copies of the foregoing Application of
Western Wireless were filed on April 28, 2005 with:
Jean Jewell, Secretary
Idaho Public Utilities Commission
O. Box 83720
Boise, Idaho 83720-0074
and true and correct copies were forwarded on April 28, 2005 , via the methodes)
indicated below, to the following:
Conley Ward
GIVENS PURSLEY, LLP
O. Box 2720
Boise, Idaho 83701-2720
Attorneys for Idaho Telephone
Association
Morgan W. Richards, Jr.
MOFFAT THOMAS
101 So. Capitol Blvd., 10th Floor
O. Box 829
Boise, Idaho 83701-0829
Attorneys for Citizens Telcom
Mary S. Hobson
STOEL RIVES, LLP
101 S. Capitol Blvd., Suite 1900
Boise, Idaho 83702-5958
Attorneys for Qwest Communications
Allan T. Thoms
VERIZON
17933 NW Evergreen Parkway
O. Box 1100
Beaverton, Oregon 97075
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WWC RESPONSE TO MOTION TO DISMISS - 7