20050617Comments.pdf

ORIGINAL
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
BRIGGS AND MORGAN, P.
Philip R. Schenkenberg (MN #260551)
2200 IDS Center
80 South Eighth Street
Minneapolis, Minnesota 55402
Phone [phone]
Facsimile [phone]
pschenkenberg ~ bri ggs. co m
ATTORNEYS FOR WWC HOLDING
CO., INC. d/b/a CELLULARONECID
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TILITiES COMMISSION
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
In the Matter of the Application of WWC )
HOLDING CO., INC. d/b/a CELLULAR- )
ONEQ!) Seeking Designation as an Eligible
Telecommunications Carrier that may receive
Federal Universal Service Support
Case No. WST-05-
COMMENTS OF
WESTERN WIRELESS
COMMENTS OF WWC HOLDING CO." INC. d/b/a CELLULAR ONEQ!)
INTRODUCTION
WWC Holding Co., Inc. d/b/a Cellular OneCID ("Western Wireless ) submits these
comments in response to the Notice of Request for Additional Public Comment, Order No. 29791
issued by the Idaho Public Utilities Commission on May 27 , 2005 Notice and Order
In the Notice and Order the Commission (1) granted immediate eligible
telecommunications carrier ("ETC") designation to Western Wireless in the non-rural telephone
company service areas identified in Western Wirelessl Application; (2) asked for public comment
on the merits of recent Federal Communications Commission ("FCC") guidelines promulgated in
the FCC's March 17 2005 Report and Order March 2005 Order
);
1 and (3) determined to
convene a technical hearing on Western Wireless' application relating to rural telephone company
servIce areas.
In the March 2005 Order the FCC adopted rules imposing new requirements for the ETC
designation proceedings conducted by the FCC under 47 U.C. ~ 214(e)(6), and establishing new
reporting requirements for carriers previously designated as ETCs by the FCC. While these new
requirements apply only to carriers designated by the FCC, the FCC has encouraged states to
consider adopting the designation and reporting requirements for state-designated ETCs. March
2005 Order ~~ 1 , 58. Western Wireless appreciates this opportunity to provide comment on the
appropriate action for the Commission to take in light of the issues raised in the March 2005
Order.
Federal-State Joint Board on Universal Service, CC Docket 96-, Report and Order, FCC 05-
(reI. March 17, 2005) March 2005 Order
COMMENTS OF WESTERN WIRELESS-2
II.THE NEW DESIGNATION STANDARDS SHOULD NOT APPLY TO PENDING
APPLICATIONS.
Because the new standards for ETC designation contained in the March 2005 Order apply
only to ETC designation petitions filed with the FCC after the effective date of the new rules, new
designation standards should not apply to Western Wireless' pending Application.
Under well-established Idaho law the Commission must apply the substantive
administrative rules in effect at the time a proceeding is commenced.See, e.
Canal/Norcrest/Columbus Action Comm. v. City of Boise 137 Idaho 377 48 P.3d 1266 (2002) ("
Idaho 'an applicant's rights are determined by the ordinance in existence at the time of filing an
application for the permit"') (citing Payette River Property Owners Ass v. Board ofComm rs of
Valley County, 132 Idaho 551 , 555, 976 P.2d 477 481 (1999) and South Fork Coalition v. Board of
Comm rs, 117 Idaho 857, 860-, 792 P.2d 882, 885-86 (1990)). In contrast, subsequent changes
in procedural rules are applicable to existing proceedings. See, e.g., University of Utah Hosp.
Pence, 104 Idaho 172, 657 P.2d 459 (1982); see also Ventura v. State Equal Opportunity Comm
246 Neb. 116, 123, 517 N.2d 368, 374-75 (1994) (stating that in contrast to substantive law, the
procedural rules to be applied are those in effect on the date of the administrative hearing); Dolese
Bros. Co. v. State of Oklahoma ex rel. Oklahoma Tax Comm 64 P.3d 1093, 1098 (Okla. 2003)
Generally, substantive administrative rules and regulations apply only to conduct that occurs after
their effective date.) (citing Bowen v. Georgetown Univ. Hosp.488 U.S. 204 208 (1988)).
The FCC'March 2005 Order itself does not apply to applications that are currently
pending at the FCC. When the FCC's new rules become final on June 24, 2005, Rule 47 C.R. ~
54.202 will read:
~ 54.202 Additional requirements for Commission designation of eligible
telecommunications carriers.
COMMENTS OF WESTERN WIRELESS-s
(a) On or after the effective date of these rules, in order to be designated an eligible
telecommunications carrier under section 214CtlQ1, any common carrier in its
application must. .
47 C.R. ~ 54.202 (emphasis added). Moreover, new reporting 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 an
eligible telecommunications carrier or that has submitted its application for
designation under section 214~ 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.
47 C.F .R. ~ 54.202(b) (emphasis added).
As the Commission stated in the Notice and Order (i)t is undisputed that Western
Wireless' Application was filed before the FCC issued its new ETC rules.Notice and Order p. 6.
To be consistent with the FCC's action and principles of administrative law, the Commission
should not apply new substantive designation standards to Western Wireless' pending Application.
IF ADOPTED" THE FCC'S NEW DESIGNATION REQUIREMENTS SHOULD BE
MODIFIED BY THE IDAHO COMMISSION
Western Wireless generally supports the Commission s adoption of ETC designation
standards consistent with FCC's new Rules, so long as the Commission adopts those rules on a
going-forward basis. In a few instances, however, as detailed below, Western Wireless proposes
modifications it believes will be more efficient and best serve universal service goals in the state of
Idaho. Western Wireless will address each separate part of new FCC Rule 54.202 in order.
The Commission Should Allow a Wireless ETC Applicant to Demonstrate a
Commitment and Abilitv to Provide the Su1!Ported Services U sin!! the
Standard in FCC Rule 54.202~
New FCC Rule 54.202(a)(1)(A) requires applicants seeking ETC designation from the FCC
to commit to provide service throughout its proposed designated service area to all customers who
make a reasonable request for service. Under the rule, if the ETC's network already passes or
COMMENTS OF WESTERN WIRELESS-4
covers a potential customer s premises, the ETC should provide service on a timely basis. If
potential customer within the applicant's licensed area but outside of its coverage seeks service, the
ETC should provide service within a reasonable time if service can be provided at a reasonable cost
by (a) modifying or replacing the requesting customer s equipment; (b) deploying a roof-mounted
antenna or other equipment; (c) adjusting the nearest cell tower; (d) adjusting network or customer
facilities; (e) reselling services from another carrier s facilities; or (f) employing, leasing or
constructing an additional cell site, cell extender, repeater or other similar equipment. Although
the FCC's new rules apply to all applicants seeking designation from the FCC, the language of the
rule focuses on wireless technology.
Western Wireless supports the Commission s adoption of the standards in this rule. By
establishing a clear process for addressing requests for service in the wireless context, the FCC has
resolved an issue that has troubled state commissions in the past. See In the Matter of the
Application of NPCR, Inc.Case No. GNR-03-Order No. 29541 , p. 20 (July 23 , 2004)
Nextel Order (commission concerned that wireless ETC applicant did not have a procedure for
addressing requests for service). Going forward, the Commission should adopt this six step process
as a method for ETCs to meet their obligation to respond to reasonable requests for service.
Because this rule is focused on wireless technology, it would not apply to landline ETC
applicants, even though landline carriers also have an obligation to provide service upon reasonable
request. Western Wireless has not reviewed the service extension requirements applicable to
potential landline ETC applicants, but the Commission should consider whether different service
extension standards are necessary for landline carriers to serve the goals of 47 U.C. ~ 214(e).
COMMENTS OF WESTERN WIRELESS-
The Commission Should Not Require a Five Year Service Improvement Plan"
But Should Adopt Reportin!! Requirements that Solicit Tar~eted and Reliable
Data Each Year
New FCC Rule 54.202(a)(1)(B) requires an applicant seeking ETC designation from the
FCC to submit a five-year plan that describes proposed improvements or upgrades to the applicant'
network on a wire-center-by-wire-center basis. A five year plan will be speculative and cause
significant administrative burdens. Rather than adopting this requirement, the Commission should
instead focus its efforts on the annual certification process and require all carriers to file detailed
expenditure and network improvement information covering a 24-month period. This will provide
better information for the Commission and reduce unnecessary regulatory expenses for all carriers
in the state. Information should be reported based on each carrier s own ETC service area in the
state, not on a wire center basis. For designation purposes, the Commission should require a new
applicant to provide detailed information regarding the current year s plans, and then to provide 24
months of information during the annual certification process.
The Commission should not require a five year service improvement
plan
New FCC Rule 54.202(b) requires that an applicant for ETC designation under Section
214( e)( 6) must file a five-year service improvement plan for using support to improve its network.
The new rule does not, however, require a carrier to demonstrate that it will complete construction
of its network or reach ubiquitous service levels within five years. Moreover, as market conditions
change, carriers will be permitted to amend their service improvement plans in subsequent years.
Nonetheless, this is a burdensome new regulatory requirement that will require an applicant to
prepare expenditure projections far beyond what is regularly done in the dynamic
telecommunications industry.
CO MMENTS OF WESTERN WI RELESS-6
First, all carriers, regardless of their technology, will have substantial difficulty creating a
five-year service improvement plan. Western Wireless does not today plan this far ahead, and will
likely have difficulty doing so with any degree of confidence. As the Commission is aware, the
telecommunications industry is in a period of rapid technological change, both with regard to the
technologies being used and the services being provided. Consumer demand for specific wireless
services is difficult to predict, and is subject to rapid change. The business and investment climate
is uncertain, and no company knows what capital will be available for investment three, four, or
five years in the future. Moreover, no one knows how federal universal service funding will be
calculated and distributed over the long run much less how much any particular carrier will
receIve.
For these reasons, Western Wireless' plans for network improvement are generally
developed the year prior to their implementation. This procedure allows Western Wireless to plan
based on what customers are demanding, on what technology is most efficient, and on what capital
and universal service funding is available. In contrast, a five-year projection would be speculative
and will not necessarily drive the actual planning that a carrier does for years three, four and five of
the plan.
requirement to prepare detailed servIce improvement plans for five years will be a
burdensome and expensive regulatory obligation. The budgeting process that a carrier undertakes
for just one upcoming year can take literally hundreds of hours to research, create, review and
approve. Moreover, when market dynamics and estimated support change from year to year, plans
made for years 3-5 will have to be redone, and the initial costs will have been unnecessarily
incurred. The Commission should not impose a regulatory obligation that has a high cost and few
benefits. Carriers and consumers would be better served by having Idaho ETCs spend scarce
COMMENTS OF WESTERN WIRELESS-7
resources to meet market demands instead of to create and recreate future non-binding network
plans.
It would be especially unfair to require Western Wireless to provide a five-year service
improvement plan as part of this pending case. The concept of a five-year plan was first introduced
less than 12 weeks ago. The federal rule requiring a five-year plan has not yet been published, and
Western Wireless will have 18 months at the federal level to conduct this analysis and create a
process for developing a five-year plan. At this early stage, Western Wireless does not have a need
for a five-year plan, has not prepared one for Idaho, and there is no industry standard or FCC-
endorsed model upon which to base a five-year plan. In addition, FCC-designated ETCs may ask
the FCC to reconsider, modify or clarify the five-year service improvement plan. If the FCC's five-
year plan requirement is modified as a result of these requests, this Application will have been
processed based on standards that were never enforced at the federal level.Under these
circumstances it would be unfair to require Western Wireless to file such a plan during the
designation process in this case.
The Commission Should Require Targeted, Reliable Information
Covering a 24 Month Period
Instead of requiring a five-year service improvement plan as set forth in the March 2005
Order the Commission should focus its efforts on the annual process required by 47 C.R. ~~
54.313-.314 in which the Commission certifies to the FCC and the Universal Service
Administrative Corporation ("USAC") that ETCs it has designated will use federal universal
service support for the purposes for which it is intended. The Commission should, as part of this
process, require all ETCs to file detailed and targeted expenditure information for a 24-month
period. In this way the Commission can obtain detailed, accurate information that it can use to
assess whether ETCs are spending universal service funds appropriately. Then, in the designation
COMMENTS OF WESTERN WIRELESS-8
process the Commission should require an ETC applicant to show its plans for the current year and
to commit to complying with the annual certification process that is adopted.
Western Wireless supports Commission oversight and monitoring of all ETCs' use of funds.
In the past, the Commission has done little review of ETCs' use of funds prior to issuing an annual
certification to the FCC and USAC. Instead, the Commission has accepted and relied on a self
certification from each carrier. While this process is sufficient, the Commission can do more to
ensure that all carriers are using funds appropriately. Western Wireless supports this process
which will do more for universal service than establishing unneeded barriers in the designation
process.
Going forward, the Commission should increase accountability in this certification process
by requiring all ETCs to make detailed filings that look at spending and planning for a two-year
period. This approach to the certification process has been implemented by other states, including
West Virginia, Maine, Vermont, Oregon, and South Dakota.Western Wireless suggests the
following model that will provide targeted and reliable data each year, in advance of the deadline
for state certification to the FCC:
Information would be filed on the June 1 prior to the October 1 certification
deadline.
The filing would describe how much support the carrier received in the prior
calendar year, and would describe how that support was used for the provision
maintenance, or upgrading of the company s facilities and services to provide
supported services. The filing would explain any changes from plans that have been
previously provided to the Commission.
The filing would provide an estimate of how much support the carrier anticipates
receiving in the current calendar year, and would describe how that support has been
used and will be used, for the provision, maintenance, or upgrading of the
company s facilities and services to provide supported services. The filing would
identify specific construction projects and, if necessary, maps, depicting how
coverage will be improved during the year.
CO MMENTS 0 F WESTERN WI RELESS-
The filing would include an affidavit from a company representative stating that
support received in the following calendar year would be used only for its intended
purposes.
Such filings would be designated as "trade secret" and not available for public
disclosure.
This detailed, reliable, and accurate information would allow the Commission to ensure that funds
are being spent as required by law and to issue FCC certifications necessary for continued receipt
of support. This process would also allow the Commission to monitor the evolution of carriers
network infrastructure over time in relation to the federal universal service support received.
filing of this nature, rather than a five-year service improvement plan, will best serve the goals of
universal service in Idaho.
With this added focus on the annual certification process the Commission should require an
ETC applicant to provide detailed information on its current year s plans for its requested
designated areas and to commit to complying with the annual certification process. By not making
a speculative five-year service improvement plan a barrier to entry, and ensuring a proper focus in
the way in which funds are spent, the Commission can best serve the interests of the consumers in
the state of Idaho.
The Commission should not require reporting at the wire center level
If the Commission requires ETC applicants or designated ETCs to file reports regarding
their network plans or use of support, those reports should be made for the ETC's designated area in
Idaho, not at the wire center level. Western Wireless' network is not engineered around wire
centers, and Western Wireless does not track capital investment, coverage, or demand on a wire
center basis. Instead, because wireless service transcends geographic boundaries, wireless carriers
generally divide their service areas into markets that are much larger than wire centers and do not
follow wire center boundaries. Organizing and tracking capital investment, coverage, network
COMMENTS OF WESTERN WIRELESS-IO
planning and customer demographics by wire center would require a substantial reconfiguration of
wireless carriers' business and accounting practices. In addition, because rural telephone company
support amounts are generally averaged over an entire study area, a competitor s planning should
not take place below the study area level. The Commission should order that all ETCs must
provide information based on their entire ETC service area in the state of Idaho rather than by wire
center.
The Commission Should Require ETC Awlicants to Demonstrate An Abilitv to
Remain Functional in Emer!!ency Situations" but Should Apply That Standard
on a Competitively Neutral Basis
FCC Rule 54.202(a)(2) requires an applicant seeking ETC designation from the FCC to
demonstrate that it is able to remain functional in emergency situations, including a demonstration
that it has a reasonable amount of backup power, is able to re-route traffic around damaged
facilities, and is capable of managing traffic spikes resulting from emergency situations. Western
Wireless does not oppose the adoption of a wireless standard in Idaho, so long as the Commission
applies this standard in a competitively-neutral manner. The Commission should understand how
wireless networks are engineered to address issues related to power loss, loss of facilities, and
traffic spikes, and may want to consider adopting a requirement that an ETC applicant commit to
industry-standard best practices for addressing emergency situations.
Wireless carriers generally maintain backup power at both cell sites and switches that will
allow the network to remain functional for 4-8 hours during a loss of external power. In addition
carriers may have one or more backup generators available to a service area if external power is
lost for an extended period of time. Western Wireless believes that this is sufficient and meets the
standard in the new FCC Rule.
With regard to re-routing traffic around damaged facilities Western Wireless generally
engineers a degree of redundancy into its transport network, but it will not be possible for all calls
COMMENTS OF WESTERN WIRELESS-II
to be delivered when a cell site goes down. For example, while a cell site is down, a customer
signal may be picked up by an adjacent site or by another carrier s site in the area, but if there is no
site that can pick up the signal, a call cannot be "re-routed." This is similar to what occurs when a
landline customer s loop is damaged, as there is simply no way for a call to travel from the
customer s house to the landline switch. In both cases, the carrier s inability to "re-route" a call is a
function of the technology and network engineering, and should not be seen as lack of ability or
commitment to provide service in emergency situations.
With regard to traffic spikes, wireless companies generally engineer their networks so that
fewer than 2% of calls are blocked at cell sites at the busiest hour of the day, and fewer than 1 %
calls are blocked at the switch. In addition, excess digital traffic at a cell site can be "pushed" to
open analog channels, increasing capacity and reducing blocking. However, if an emergency
situation causes usage at twice the level of busy hour usage, the capacity engineered into the
system will be exceeded. Because such emergency situations are extremely rare and unpredictable
no wireless carrier could justify spending capital resources to overbuild capacity at every cell
tower. The Commission should keep these network engineering issues in mind as it applies a
standard that ETC applicants demonstrate an ability to manage traffic spikes.
In requiring an ETC to "demonstrate its ability to remain functional in emergency
situations" the Commission should understand the technical issues inherent in ETCs' networks and
require a showing that the applicant follows best practices in the industry for its technology. The
Commission should be careful not to disqualify an applicant based on limitations that are inherent
in the carrier s technology.
COMMENTS OF WESTERN WIRELESS-
FCC Rule 54.202(!lQ) Concernin~licable Consumer Protection and
Service Qualify Standards Should be Adopted For Wireless ETC Applicants
FCC Rule 54.202(a)(3) requires carriers seeking ETC designation from the FCC to make
specific commitments to meet objective consumer protection and service quality standards. The
FCC has further provided that for a wireless applicant, a commitment to comply with the CTIA
Consumer Code satisfies the requirement. 47 C.R. ~ 54.202(a)(3) ("A commitment by wireless
applicants to comply with the Cellular Telecommunications and Internet Association s Consumer
Code for Wireless Service will satisfy this requirement."
W estern Wireless supports Commission adoption of this FCC Rule. The CTIA Code sets
forth certain principles, disclosures and practices for the provision of wireless service that benefit
consumers: The CTIA Code, which is available at http://www.wow-com.com/pdf/The Code.pdf
provides that wireless carriers agree to:
(1) (D)isclose rates and terms of service to customers; (2) make available maps
showing where service is generally available; (3) provide contract terms to
customers and confirm changes in service; (4) allow a trial period for new
service; (5) provide specific disclosures in advertising; (6) separately identify
carrier charges from taxes on billing statements; (7) provide customers the right to
terminate service for changes to contract terms; (8) provide ready access to
customer service; (9) promptly respond to consumer inquiries and complaints
received from government agencies; and (10) abide by policies for protection of
consumer prIvacy.
The FCC has repeatedly determined that for a wireless carner seeking ETC designation, a
commitment to comply with the CTIA Code constitutes a specific commitment to meet objective
consumer protection measures. March 2005 Order ~ 28; Virginia Cellular, LLC Petition for
Designation as an Eligible Telecommunications Carrier In the Commonwealth of Virginia
Docket No. 96-, Memorandum Opinion and Order, FCC 03-338, ~ 30 & fn.94 (reI. Jan. 22
2004). While the Commission did not endorse the CTIA Code in the Nextel ETC case, the FCC'
codification of this standard and the lack of any other "applicable" ETC standards should convince
COMMENTS OF WESTERN WIRELESS-IS
the Commission to change course. Because adherence to the principles and practices set forth in
the CTIA Code ensures that wireless carriers provide high-quality consumer service that leads to
consumer satisfaction, Western Wireless supports the Commission s adoption of this FCC standard.
The Commission Should Not Require a Competitive ETC to Demonstrate that
It has a Comparable Local Usa!!e Plan
New FCC Rule 54.202(a)(4) requires an ETC applicant to show that it has one local usage
plan that is "comparable " to that offered by the incumbent ETC in the area. This is unnecessary,
not competitively neutral, requires the Commission to do the job of consumers, and should not be
adopted.
The Act is designed to achieve the goal of universal service through the operation of
competitive markets in rural areas. Alenco Communications Inc. v. C. 201 F.3d 608, 614-
(5th Cir. 2000). A fundamental principle of our free market system is that when competitive
markets exist and consumer preferences are allowed to drive the goods and services provided
consumers win. It is this policy that has led the wireless industry from its infancy 15 years ago to
where it is today. Wireless service offerings look they way they do today because companies have
innovated and consumers have responded. For example; "National" plans, free in-network calling,
inexpensive state of-the-art handsets, and per-second billing, exist because of competition and
consumer demand, not because of regulatory mandates.It would be difficult to argue that
regulators could have done a better job than consumers have done over this period of driving the
industry s success in meeting customer needs.
Western Wireless is confident that it provides service plans that would be found
comparable" to the ILECs' plans.But Western Wireless is opposed to this exercise being
conducted at all. Western Wireless should be allowed to offer the FCC's supported services within
service plans that are designed to satisfy consumers in a competitive market, not to satisfy
CO MMENTS OF WESTERN WI RELESS-14
regulators. It is significant that there is no evidence that a comparability exercise will produce a
result that will bring consumers something that they want but cannot get from competitive markets.
In addition making the ILEC's service offering the baseline is at odds with the principle of
competitive neutrality, which provides that no carrier should be placed at a disadvantage due to its
technology or regulatory status. In the Matter of Federal-State Joint Board on Universal Service
CC Docket No. 96-, Report and Order, FCC 97-157, ~ 47 (reI. May 8 1997) Universal Service
Order
).
The Commission should not adopt this requirement in Idaho.
If the Commission does adopt this requirement it should make clear that this comparability
analysis will be conducted with reference to one plan available from the applicant (as opposed to
all plans that contain the supported services). The Commission should also commit to conducting a
broad comparability test that looks at more than just the number of available minutes and the
prices, instead recognizing that value can come in the form of mobility, larger local calling areas
and other features of wireless service. See March 2005 Order ~ 33.
The Commission Should Not Require An Equal Access Certificatim!.
Rule 54.202(a)(5) requires a carrier seeking ETC designation from the FCC to certify that
the carrier acknowledges that the (FCC) may require it to provide equal access to long distance
carriers in the event that no other eligible telecommunications carrier is providing equal access
within the service area." Western Wireless believes it is not necessary to require an ETC applicant
to make this acknowledgment. Under 47 D.C. ~ 332(c)(8), the FCC, not a state commission, has
the authority to require a CMRS provider to provide equal access:
A person engaged in the provision of commercial mobile services, insofar as such
person is so engaged, shall not be required to provide equal access to common
carriers for the provision of telephone toll services. If the Commission (i., the
FCC) determines that subscribers to such services are denied access to the provider
of telephone toll services of the subscribers' choice , and that such denial is contrary
to the public interest, convenience, and necessity, then the Commission shall
prescribe regulations to afford subscribers unblocked access to the provider of
COMMENTS OF WESTERN WIRELESS-15
telephone toll services of the subscribers' choice through the use of a carrIer
identification code assigned to such provider or other mechanism.
47 U.C. ~ 332(c)(8) (emphasis added). In the March 2005 Order the FCC cited Section 332 and
said that "if such circumstances arise, the Commission should consider whether to impose an equal
access or similar requirement under the Act." March 2005 Order ~ 35. As a result, it will be the
FCC that considers this issue in the case of the unusual circumstances contemplated.
acknowledgment" to the Idaho Commission that the FCC may require it to provide equal access is
unnecessary and adds nothing to the ETC designation process.
The Commission should Set a June 1 Reportin!! Deadline
New FCC Rule 54.202(b) requires designated ETCs or carriers with applications pending to
submit the information required by Rule 54.202(a) by October 1 , 2006, as part of its annual
reporting under FCC Rule 54.209.Western Wireless supports Commission adoption of this
standard for two important reasons.
First, as noted above, the FCC made clear that carriers with applications currently pending
(like Western Wireless in this case) should not be required to meet these new standards in the
designation process.Instead new substantive and reporting standards would be applicable
beginning in 2006. Second, this FCC rule requires that all carriers, not just competitive ETCs or
wireless ETCs, must meet new reporting requirements.This is consistent with the FCC'
statements in the March 2005 Order:
We do not believe thatdifferent 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.
(W)e encourage state commissions to apply the reporting requirements to all
ETCs, not just competitive ETCs.
COMMENTS OF WESTERN WIRELESS-16
Id. ~~ 20, 71. As a result, if the Commission adopts new reporting requirements it should require
all designated ETCs, and carriers with applications currently pending, to meet these reporting
requirements for the first time in 2006.
Second, because states themselves must certify to the FCC by October 1 , carriers should
report to state commissions before October 1 so states can evaluate the filed information before
issuing its certification. As noted above, Western Wireless supports a June 1 filing requirement to
ensure there is sufficient time in the certification process.
The Commission Should Adopt A Public Interest Analysis Consistent With
That Set Forth In Rule 54.202(rl
FCC Rule 254.202( c) provides that in evaluating whether an ETC designation would serve
the public interest in accordance with 47 D.C. ~ 214(e)(2), the FCC will consider the benefits of
competitive choice and the advantages of the applicant's service offerings. The Commission should
adopt this framework for evaluating the public interest, and should depart from the public interest
factors the Commission relied on in the Nextel ETC case.
In the Nextel case the Commission applied a public interest standard that is very difficult
for a competitor to meet, and that if applied consistently will make it unlikely that Idaho consumers
will receive the full benefits of the universal service program. For example, the Commission noted
that the applicant had not proven that it "needed to receive support in order to extend service.
Nextel Order p. 22. However, there is no "needs test" under the federal universal service program
and the application of such a test is discriminatory. By adopting a public interest standard that does
not contain a needs test the FCC has implicitly agreed that such a showing is not required to serve
the public interest. As it moves forward, the Commission should not impose a "needs" test that
clearly does not exist.
COMMENTS OF WESTERN WIRELESS-17
The Commission s real concern in the Nextel case was that it was not sure that federal
universal service support received by the applicant would be spent appropriately in Idaho. Nextel
Order p. 22.If the Commission accepts Western Wireless' recommendation to change the
certification process to ensure Commission review of detailed expenditure and funding
information, that concern will be addressed every year. Because this will be considered in the
annual certification process, the Commission need not (and should not) consider this as a threshold
public interest issue.
The Commission s public interest analysis in the Nextel case also relied on its decision that
the designating ETCs in rural areas puts additional stress on the DSF and the public interest is not
served in this case by subsidizing multiple carriers in rural high cost areas.Nextel Order p. 23.
In its March 2005 Order the FCC rejected this kind of general conclusion, refusing to adopt a
rebuttable presumption that the public interest is not served by additional ETC designations.
March 2005 Order ~ 57. The FCC has signaled that continued ETC designations in rural areas are
good for consumers and finding issues will be managed by the Joint Board and FCC on an ongoing
basis. The Commission should follow this guidance, adopt the FCC's public interest test, and
welcome competitive ETCs as joint participants in delivering universal services to rural Idaho.
The Commission Should Adopt and Suwlement FCC Rule 54.202W to Codify
a Creamskimmin!! Analysis
FCC Rule 54.202( c) also provides that where an ETC applicant seeks designation below the
study area level of a rural telephone company, the FCC will conduct a creamskimming analysis.
The FCC Rule 54.202( c) specifies that a creamskimming analysis will include two elements: 1) a
comparison of the population density of the rural telephone company s wire centers for which the
ETC applicant seeks designation to the population density of the rural telephone company s wire
CO MMENTS OF WESTERN WI RELESS-
centers for which the ETC applicant does not seek designation; and 2) a consideration of whether
the incumbent local exchange carrier has disaggregated support.
Western Wireless supports a Commission rule describing how it should proceed when
ETC applicant seeks to serve in a portion of a rural telephone company study area. To ensure
clarity and certainty in this process, however, the Commission should further provide that if the
rural telephone company has disaggregated support or if the population density analysis does not
demonstrate cream skimming, the Commission shall authorize the applicant's designation in the
wire centers where designation is sought. Whether disaggregation has occurred is important
because disaggregation targets support, minimizing or eliminating any chance of creamskimming.
March 2005 Order 51. And as the FCC has observed, the population density analysis is
important because it provides an objective means for identifying whether the ETC applicant is
seeking to serve only the lower cost wire centers to the exclusion of less profitable areas. March
2005 Order ~ 50. These supplements to FCC Rule 54.202( c) will provide needed clarity and
predictability to the Commission s creamskimming analysis.
FCC Rule 54.202U!) Concernin~ ETC Desi!!nation for Tribal Lands
FCC Rule 54.202( d) establishes additional standards for FCC ETC designation requests on
tribal lands. Western Wireless does not know whether a competitive ETC would seek designation
for tribal lands in Idaho before the Commission under 47 U.C. ~ 214(e)(2), or before the FCC
under 47 U.C. ~ 214(e)(6). Western Wireless does not oppose the Commission s adoption of a
rule like FCC Rule 54.202( d) if there are applicable tribal lands in the state.
COMMENTS OF WESTERN WIRELESS-19
II.THE COMMISSION SHOULD ADOPT NEW ANNUAL REPORTING
REQUIREMENTS FOR ALL ETCS" BUT SHOULD MODIFY THE STANDARDS
IN THE FCC'S NEW RULES
Any New Reportin2 Or Certification Requirements Must Apply To All ETCs
If the Commission proceeds to impose new reporting or certification requirements, it is of
primary importance the new standards apply to all ETCs, not just competitive ETCs. The FCC'
new Rules apply to all federally-designated ETCs, and the FCC has cautioned that state rules
should not distinguish among ETCs based on how they are regulated or what communications
technology is used:
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.
March 2005 Order ~ 20. Consistent with this policy principle, the FCC stated:
(W)e encourage state commissions to apply the reporting requirements to all ETCs
not just competitive ETCs.
Id. ~ 71.
In 1997 the FCC adopted the principle of competitive neutrality as a core principle for its
universal service rules. This principle means that universal service rules must not favor one
competitor or one technology over another. Universal Service Order ~ 47. Because the obligation
to spend universal service funds for the purposes for which they are intended applies to all ETCs, it
would violate the principal of competitive neutrality to require only certain carriers to meet
heightened reporting standards.See March 2005 Order ~ 20 ("These are responsibilities
associated with receiving universal service support that apply to all ETCs, regardless of the date of
initial designation. "). To be consistent with this core principle, and as recommended by the FCC
any new reporting or certification requirements must apply to incumbent ETCs, competitive ETCs
and new ETC applicants.
COMMENTS OF WESTERN WIRELESS-
The FCC's Service Improvement ReJl!!!:!!!!g quirements Should be Modified
for Idaho
Consistent with Western Wireless Comments regarding FCC Rule 54.202(a)(1)(B),
Western Wireless supports Commission action that heightens the level and quality of reporting for
certification process, but does not require carriers to file or maintain a five-year service
improvement plan. Supra. pp. 9-10. By focusing their efforts on 24 months of detailed, accurate
information, the Commission can assess whether ETCs are spending universal service funds
appropriately and ensure that this program is best serving customers. In addition, any such
reporting rules should modify the Rule to require an ETC to report service improvements and
expenses for its entire designated area in the state of Idaho, rather than on a wire center basis.
Supra p. 10-11.
Outa2e Reportin2 Should Track Reportin2 Already Required By Federal Law.
New FCC Rule 54.209(a)(2) requires ETCs to report detailed information on "any outage as
the term is defined in 47 C.R. ~ 4.Western Wireless does not object to a Commission
requirement that all ETCs file outage data, but if it does so the Commission should depart from the
requirements of the FCC's new rule. All carriers providing voice communications (including all
designated ETCs) recently became subject to federal outage reporting requirements. In the Matter
of New Part of the Commission s Rules Concerning Disruptions to Communications ET Docket
No. 04-Report and Order and Further Notice of Proposed Rulemaking, FCC 04-188 (reI. Aug.
, 2004) Outage Order
).
The FCC rules promulgated in the Outage Order (47 C.R. ~ 4.
seq.impose detailed reporting requirements, which are specifically tailored to the technology used
by each type of voice service provider. Wireless carriers have the following obligation:
Wireless. All wireless service providers shall submit electronically a Notification to
the Commission within 120 minutes of discovering that they have experienced on any
facilities that they own, operate, lease, or otherwise utilize, an outage of at least 30
COMMENTS OF WESTERN WIRELESS-21
minutes duration: (1) of a Mobile Switching Center (MSC); (2) that potentially
affects at least 900 000 user minutes of either telephony and associated data (2nd
generation or lower) service or paging service; (3) that affects at least 1 350 DS3
minutes; (4) that potentially affects any special offices and facilities (in accordance
with paragraphs (a) - (d) of section 4.5) other than airports; or (5) that potentially
affects a 911 special facility (as defined in (e) of section 4.5), in which case they also
shall notify, as soon as possible by telephone or other electronic means, any official
who has been designated by the management of the affected 911 facility as the
provider s contact person for communications outages at that facility, and they shall
convey to that person all available information that may be useful to the management
of the affected facility in mitigating the effects of the outage on callers to that facility.
(DS3 minutes and user minutes are defined in paragraphs (d) and (e) of section 4.
In determining the number of users potentially affected by a failure of a switch, a
concentration ratio of 8 shall be applied. For providers of paging service solely,
however, the following outage criteria shall apply instead of those in subparagraphs
(1) - (3), above: Notification must be submitted if the failure of a switch for at least
30 minutes duration potentially affects at least 900 000 user-minutes. Not later than
72 hours after discovering the outage, the provider shall submit electronically an
Initial Communications Outage Report to the Commission. Not later than thirty days
after discovering the outage, the provider shall submit electronically a Final
Communications Outage Report to the Commission. The Notification and the Initial
and Final reports shall comply with all of the requirements of section 4.11.
47 C.R. ~ 4.9(b). These standards are similar to, but not identical to, the standards in the new
FCC Rule 54.209(a)(2).
The Commission would be best served by requiring that during the annual certification
process all ETCs file copies of any service outage reports with the FCC pursuant to Outage Order
since the prior year s certification. As required by the FCC, these filings should be designated as
trade secret and not be available for public disclosure. Outage Order ~ 3. This will provide the
Commission with sufficient information to allow it to monitor outages, without imposing a second
set of standards for carriers to use in tracking and reporting outages.
ETCs Should Report on Their Responses To Requests for Service
New FCC Rule 54.209(a)(3) requires ETCs to report the number of unfilled requests for
service and to identify how the carrier attempted to provide service to those customers in light of
the FCC's six-step process for responding to requests for service. 47 C.R. ~ 54.209(a)(3).
COMMENTS OF WESTERN WIRELESS-22
Western Wireless supports Commission action codifying this six-step process and requiring all
ETCs to reporting unfilled requests on an annual basis.
There is NoN eed for ETCs to Report Complaints
New FCC Rule 54.209(a)(4) requires FCC-designated ETCs to report the number of
complaints per 1000 handsets. There is no evidence that such reporting is necessary to ensure the
continued success of the federal universal service program in the state. The Commission should
not impose reporting requirements in the absence of a demonstrated need. As discussed above, any
such reporting requirements that the Commission adopts must apply equally to all Idaho ETCs.
Certification Re2ardin~pplicable Service Oualitv Standards
New FCC Rule 54.209(a)(5) requires FCC-designated ETCs to certify that they are
complying with applicable service quality standards and consumer protection rules. As noted
above, the FCC has provided that the CTIA Consumer Code, rather than state-commission local
exchange service quality standards, would apply to wireless ETCs. Western Wireless supports a
Commission rule codifying this standard and would not object to a requirement that all wireless
ETCs annually certify their compliance with this standard.
Certification Re2ardin2 the Abilitv to Remain Functional In Emer2ency
Situations
New FCC Rule 54.209(a)(6) requires an FCC-designated ETC to certify that it is able to
function in emergency situations. 47 C.R. ~ 54.209(a)(6). As noted above, Western Wireless
does not object to a requirement that all ETCs certify that they are able to remain functional in
emergency situations so long as the reporting requirement applies to all ETCs, and the underlying
standard is applied on a competitively-neutral basis. Western Wireless, also notes that Rule
54.209(a)(6) contains a typographical error. It requires an ETC to certify that it is able to function
in emergency situations "as set forth in 47 C.R. ~ 54.201(a)(2)." The proper cross-reference is
COMMENTS OF WESTERN WIRELESS-
Section 54.202(a)(2), which is the new FCC Rule providing that ETC applicants should
demonstrate an ability to remain functional in emergency situations.
Comparable Local Usa2e Plan
New FCC Rule 54.209(a)(7) requires ETCs to certify that they are offering a local usage
plan comparable to that offered by the incumbent LEC in the relevant service areas. As set forth
above, Western Wireless believes this requirement is unnecessary and not competitively neutral.
the Commission rejects the underlying substantive requirement, then no reporting is necessary.
Equal Access
New FCC Rule 54.209(a)(8) requires ETCs to certify that the FCC may require a wireless
ETC to offer equal access to long distance carriers if no other ETC is providing equal access within
the service area. As set forth above, Western Wireless believes this requirement is unnecessary.
the Commission rejects the underlying substantive requirement, then no reporting is necessary.
The Commission Should Establish a June 1 Filin2 Deadline
New FCC Rule 54.209(b) establishes an October 1 deadline for FCC-designated ETCs to
file the information set forth in rule 54.209(a). As noted above, Western Wireless supports a state
commission filing deadline of June 1 , which will allow the Commission to review filed information
and issue certifications to the FCC Rule before the October 1 deadline set forth in 47 C.R. ~~
54.313-314.
III.FCC RULES 54.307'1.313'1. .314'1 AND .809 NEED NOT BE ADOPTED
In the March 2005 Order the FCC amended 47 C.R. ~~ 54.307
, .
313
, .
314 and .809 to
address issues related to the federal funding mechanisms.Because these mechanisms are
administered by DSAC under the FCC's supervision, the Commission need not and should not
adopt comparable rules.
COMMENTS OF WESTERN WIRELESS-24
IV.CONCLUSION
Western Wireless appreciates the opportunity to offer these Comments as the Commission
considers adopting new ETC designation and reporting requirements.
Respectfully submitted
Dated: June 17, 2005 WWC HOLDING CO., INC.
d/b/a Cellular One(!!)
\J~
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 0 NE(!!)
COMMENTS OF WESTERN WIRELESS-25
CERTIFICATE OF SERVICE
I certify that the original and seven copies of the foregoing Application of
Western Wireless were filed on June 17 2005 with:
Jean Jewell, Secretary
Idaho Public Utilities Commission
O. Box 83720
Boise, Idaho 83720-0074
and true and correct copies were forwarded on June 17 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.
MOFF AT 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
Hand Delivered 0
Federal Express S. Mail P/Telecopy
Hand Delivered 0
Federal Express
S. Mail Telecopy
Hand Delivered 0
Federal Express S. Mail Telecopy
Hand Delivered 0
Federal Express
S. Mail JjfTelecopy
'7 4d~
COMMENTS OF WESTERN WIRELESS-26