20050414ITA motion to dismiss.pdf

Conley E. Ward (ISB No. 1683)
GIVENS PURSLEY LLP
601 W. Bannock Street
O. Box 2720
Boise, ID 83701-2720
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Attorneys for Idaho Telephone Association
S:\CLIENTS\I 233\1 90\ITA Motion to Dismiss.DOC
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION
OF WWC HOLDING CO., INC. D/B/A
CELLULAR -ONECID SEEKING
DESIGNATION AS AN ELIGIBLE
TELECOMMUNICATIONS CARRIER
THAT MAY RECEIVE FEDERAL
UNIVERSAL SERVICE SUPPORT.
Case No. WST-05-
IDAHO TELEPHONE ASSOCIATION'
MOTION TO DISMISS
The Idaho Telephone Association ("ITA"), by and through its attorneys of record, Givens
Pursley LLP, pursuant to Rule 56 of the IPUC Rules of Procedure, IDAPA 31.01.01.056
hereby files this Motion to Dismiss the Application of Western Wireless in the above-entitled
action for failure to state a claim upon which relief can be granted. In support of its Motion, the
ITA states as follows:
ST A TEMENT OF THE CASE
On February 17, 2005 , WWC Holding Co., Inc., d/b/a CellularOne ("Western Wireless
or Applicant) filed with the Idaho Public Utilities Commission ("Commission ) an Application
for Designation as an Eligible Telecommunications Carrier. Western Wireless s application
requests an eligible telecommunications carrier ("ETC") designation for its wireless
IDAHO TELEPHONE ASSOCIATION'S MOTION TO DISMISS - Page 1 of ORIGINAL
telecommunications service within the service areas of the following incumbent local exchange
carriers ("ILECs
):
Qwest Corporation ("Qwest"), Citizens Telecommunications Company of
Idaho ("Citizens ), Farmers Mutual Telephone Company ("Farmers ), Cambridge Telephone
Company ("Cambridge ), and Midvale Telephone Exchange, Inc. ("Midvale ). All of these
ILECs except Qwest are "rural telephone companies" as that term is defined in 47 U.C. 9
153(37).
In Order No. 29749, the Commission issued its Notice of Application and Notice of
Modified Procedure in this matter. The Idaho Telephone Association! petitioned to intervene on
February 23 2005, and the Commission granted its petition in Order No. 29722, issued on
March 10 2005.
ARGUMENT
In its Application, Western Wireless alleges that "the requirements for ETC designation
are set forth in 47 U.C 9 214(e)(1)-(2) and 47 C.R. 9 54.101." Application 9 A(8).
Section 214(e)(1) of the Telecommunications Act of 1996, provides that an applicant for ETC
status:
shall, throughout the service area for which such designation is received-
(A) offer the services that are supported by Federal universal support mechanisms
under section 254 . . . ; and
(B) advertise the availability of such services and the charges therefore using
media of general distribution.
47 U.C. 9214(e)(1). Section 214(e)(5) further provides:
In the case of an area served by a rural telephone company "service area" means
such company s "study area" unless and until the Commission and the States after
1 The ITA is authorized to represent member companies in regulatory proceedings and in other public policy
matters. ITA member companies include: Albion Telephone Company, Cambridge Telephone Company, Custer
Telephone Cooperative, Inc., Farmers Mutual Telephone Company, Filer Mutual Telephone Company, Inland
Telephone Company, Midvale Telephone Company, Mud Lake Telephone Cooperative Association, Project Mutual
Telephone Cooperative Association, Direct Communications - Rockland, Rural Telephone Company, Silver Star
Telephone Company, Oregon-Idaho Utilities, and Fremont Telecom.
IDAHO TELEPHONE ASSOCIATION'S MOTION TO DISMISS - Page 2 of 7
taking into account recommendations of a Federal-State Joint Board instituted
under section 41 O( c), establish a different definition of service area for such
company.
Section 54.101 of the Code of Federal Regulations essentially repeats this statutory language.
Applicant's characterization of the governing law was correct at the time it filed
its Application. Since that time, however, the Federal Communications Commission has
adopted additional regulatory requirements for ETC applications in cases such as this.
See In the Matter of Federal-State Joint Board On Universal Service CC Docket 96-
March 17 2005 (hereafter Order). These additional substantive requirements are set
forth in pertinent part below:
~ 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 214( e)( 6), any common carrier
in its application must:
(1) (A) commit to provide service throughout its proposed designated service area
to all customers making a reasonable request for service. Each applicant shall
certify that it will (1) 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 (2) 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 (a) modifying or replacing the requesting customer
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 to provide service; or (f)
employing, leasing or constructing an additional cell site, cell extender, repeater
or other similar equipment; and
(B) submit a five-year plan that describes with specificity proposed improvements
or upgrades to the applicant's network on a wire center-by-wire center basis
throughout its proposed designated service area. Each applicant shall 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 estimated amount of investment for each project that is funded by high-
cost support; the specific geographic areas where the improvements will be made;
IDAHO TELEPHONE ASSOCIATION'S MOTION TO DISMISS - Page 3 of 7
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) demonstrate its ability to remain functional in emergency situations, including
a demonstration that it has a reasonable amount of back-up power to ensure
functionality without an external power source, is able to reroute traffic around
damaged facilities, and is capable of managing traffic spikes resulting from
emergency situations.
(3) demonstrate that it will satisfy applicable consumer protection and service
quality standards. A commitment by wireless applicants to comply with the
Cellular Telecommunications and Internet Association s Consumer Code for
Wireless Service will satisfy this requirement. Other commitments will be
considered on a case-by-case basis.
(4) demonstrate that it offers a local usage plan comparable to the one offered by
the incumbent LEC in the service areas for which it seeks designation.
(5) certify that the carrier acknowledges that the Commission 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.
47 C.F .R. 9 54.202 (emphasis added). While the FCC did not make these rules mandatory for
state commissions, it did so in part because it wished to allow state commissions "to maintain the
flexibility to impose additional eligibility requirements in state ETC proceedings Order 'if 61
(emphasis added). The FCC did, however, strongly "encourage" the states to adopt its policies
as a minimum requirement Order 'if 58-, and pointedly noted that it has "the authority to
revoke a carrier s ETC designation.Order 'if 63.
Under these circumstances, the IT A respectfully submits that the Idaho Commission
should adopt the FCC's minimum requirements for ETC applicants. These requirements are
patently consistent with the intent of the Act, and will provide all stakeholders with uniform and
clear guidelines for what has heretofore been largely an ad hoc process that varies from state to
state and applicant to applicant. Assuming the Commission decides to follow the FCC's and
IDAHO TELEPHONE ASSOCIATION'S MOTION TO DISMISS - Page 4 of 7
Joint Board's lead, Western Wireless s application is defective because it does not include the
commitments and certifications required by subsections 54.202(a)(1)(A), 54.202(a)(2), and
54.202(a)(5), nor the five year plan required by 54.202(a)(1)(B). This defect cannot be rectified
by further proceedings or submissions because the required showings must be included in the
application
Furthermore, insofar as the application pertains to rural telephone company service areas
it should not be processed under Modified Procedure. This is so because the FCC also adopted a
new public interest test that requires an evidentiary investigation and specific findings of fact
before granting an ETC application such as this:
(c) Public Interest Standard. Prior to designating an eligible telecommunications
carrier pursuant to section 214(e)(6), the Commission determine (sic) that such
designation is in the public interest. In doing so, the Commission shall consider
the benefits of increased consumer choice, and the unique advantages and
disadvantages of the applicant's service offering. In instances where an eligible
telecommunications carrier applicant seeks designation below the study area level
of a rural telephone company, the Commission shall also conduct a
creamskimming analysis that compares the population density of each wire center
in which the eligible telecommunications carrier applicant seeks designation
against that of the wire centers in the study area in which the eligible
telecommunications carrier applicant does not seek designation. In its
creamskimming analysis, the Commission shall consider other factors, such as
disaggregation of support pursuant to 9 54.315 by the incumbent local exchange
carrIer.
47 C.F .R. 9 54.202( c). Again, this is not mandatory for state commissions, but it is
certainly advisable and in the public interest.
WHEREFORE, the ITA respectfully moves this Commission for an order dismissing
Western Wireless s Application for failure to state a claim upon which relief can be granted.
The IT A does not request oral argument on this motion, but is prepared to provide oral argument
if the Commission so orders.
IDAHO TELEPHONE ASSOCIATION'S MOTION TO DISMISS - Page 5 of 7
DATED this 14th day of April 2005.
nley E. ard
Attorneys for Idaho Telephone Association
IDAHO TELEPHONE ASSOCIATION'S MOTION TO DISMISS - Page 6 of 7
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 14th day of April 2005 , I caused to be served a true and
correct copy of the foregoing document by the method indicated below and addressed to the
following:
Jean Jewell
Idaho Public Utilities Commission
472 W. Washington Street
O. Box 83720
Boise, ID 83720-0074
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Dean J. Miller
MCDEVITT & MILLER LLP
420 W. Bannock Street
O. Box 2564
Boise, ID 83701-2564
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Mark 1. Ayotte
BRIGGS AND MORGAN P
2200 First National Bank Building
332 Minnesota Street
St. Paul, MN 55101
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Morgan W. Richards, Jr.
Attorney at Law
O. Box 1632
Boise, ID 83701
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Mary S. Hobson
STOEL RIVES LLP
101 S. Capitol Boulevard, Ste. 1900
Boise, ID 83702-5958
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IDAHO TELEPHONE ASSOCIATION'S MOTION TO DISMISS - Page 7 of 7