20050503_1183.pdf

DECISION MEMORANDUM
TO:COMMISSIONER KJELLANDER
COMMISSIONER SMITH
CO MMISSI 0 NER HANSEN
COMMISSION SECRETARY
COMMISSION STAFF
LEGAL
FROM:KIRA DALE PFISTERER
DATE:APRIL 28, 2005
RE:CASE NO. WST-05-
APPLICATION OF WESTERN WIRELESS FOR ETC DESIGNATION
Before the Commission is a Motion to Dismiss filed by the Idaho ,Telephone
Association (IT A) on April 14, 2005. ITA asks the Commission to dismiss the Western Wireless
Application for ETC Designation for failure to state a claim upon which relief can be granted.
BACKGROUND
On ebruary 17, 2005 WWC Holding Co., Inc. dba CellularOneCID ('~Western
Wireless" or the Company) submitted an Application requesting that it be designated as a federal
eligible telecommunications carrier (ETC) in certain service areas in Idaho. ETC designation
would allow Western Wireless to receive federal universal service support.
On February 23 , 2005, ITA filed a Petition to Intervene that the Commission granted
on March 10, 2005. Order No. 29722. On March 4, 2005 , Citizens Telecommunications
Company of Idaho, Inc. doing business as Frontier Communications of Idaho ("Frontier ) filed a
Motion to Intervene that the Commission granted on March 16 2005. Order No. 29734.
On February 25, 2005 , the Federal Communications Commission ("FCC") adopted
new guidelines pertaining to ETC designation proceedings. In the Matter of the Federal-State
Joint Board on Universal Service CC Docket No. 96-45 March 17, 2005 FCC Order
).
April 1 , 2005 , the Commission issued a Notice of Application, Notice of Modified Procedure
and Order allowing for a 28-day comment period. Order No. 29749. In the Notice of
Application, the Commission described the recent FCC Order and in the l~otice of Ivlodifu::u
DECISION MEMORANDUM
Procedure, the Commission urged all parties submitting comments to address the requirements in
the FCC Order. Comments are due April 29 , 2005.
ANALYSIS
IT A argues that the Western Wireless Application should be dismissed, because it
does not meet the new FCC guidelines applying to ETC designations and set forth in the FCC
Order and final rules. In addition, IT A argues that the Commission should not process the
Application under Modified Procedure to the extent the Application seeks ETC designation in
rural telephone company service areas. In these areas, ITA argues, an evidentiary hearing is
necessary in order to apply a fact-intensive, public-interest analysis as set forth in the FCC
Order.Nonetheless, while ITA requests a hearing to make appropriate public-interest
determination in the event the Commission considers the substance of the Western Wireless
Application, IT A does not request oral argument on the Motion to Dismiss.
Western Wireless filed a timely response to ITA's Motion on April 28, 2005.
Western Wireless argues that because the FCC Order and new ETC designation requirements
only apply to those ETC applications filed with the FCC , they cannot be used to bar an
application filed before this Commission. The rules simply do not apply. Moreover, the new
FCC requirements only apply to those ETC applications filed after January 1 , 2006, the effective
date of the rules. Therefore, according to Western Wireless, even if the Commission decides to
adopt these new standards in Idaho, they should not be applied to the Western Wireless
Application.
Without citing to any authority, Western Wireless suggests that applying the new
rules would violate "the fundamental principal of administrative law that an application must be
considered based on the rules in effect when it was filed." On this basis, W estern Wireless
argues that the proposed rules do not and should not apply to the Western Wireless Application.
Alternatively, Western Wireless suggests that if the Commission wants to adopt the new
guidelines, it should do so through a separate rulemaking docket.
With respect to IT A'request for a hearing to consider the public interest
determinations relevant to Western Wireless' request for ETC designation in certain rural areas
Western Wireless suggests that the new rule merely codifies what many state commissions have
already done and contemplates factors already addressed in the Western Wireless Application.
DECISION MEMORANDUM
Thus, Western Wireless does not believe this public interest standard requires dismissal of the
Application and does not warrant a hearing.
COMMISSION DECISION
I. Does the Commission grant or deny ITA's Motion to Dismiss the Application of
Western Wireless for Designation as an ETC?
2. Does the Commission wish to decide whether to hold a hearing to consider the
public interest analysis as it applies to the rural areas identified in the Western Wireless
Application?
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DECISION MEMORANDUM